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Full text of "North Carolina Register v.8 no. 4 (5/14/1993)"

Ni'l-V 



/• 



The 
^ORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 




EXECUTIVE ORDER 



PROPOSED RULES 

Administrative Hearings, Office of 

Environment, Health, and Natural Resources 

Mortuary Science, Board of 

Nursing Home Administrators, Bd. of Examiners 

Pharmacy, Board of 

Plumbing, Heating & Fire Sprinkler Contractors 

Real Estate Commission 

State Treasurer 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: May 14, 1993 



RECEIVED 



Volume 8 • Issue 4 • Pages 332 - 400 ^^y 1 9 1993 

LAW LIBRARY 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMINTSTRATTVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains infonnation relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 1 SOB -2 1.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Stamtes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule thai 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearmgs (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscripuon to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTTS 



I. EXECUTIVE ORDER 

Executive Order 8 332 

II. PROPOSED RULES 
Administrative Hearings, 
Office of 

Civil Rights Division 370 

General 366 

Rules Division 367 

Environment, Health, and 
Natural Resources 

Health Services 335 

Zoological Park 337 

Licensing Boards 

Mortuary Science 342 

Nursing Home Administrators . . 346 

Pharmacy 354 

Plumbing, Heating and Fire 

Sprinkler Contractors 360 

Real Estate Commission 364 

State Treasurer 
Retirement Systems 337 

III. RRC OBJECTIONS 372 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 378 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 379 

Text of Selected Decisions 

92 OSP 0313 382 

92 DHR 0658 392 

92 BMS 1169 396 

VI. CUMULATIVE INDEX 399 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


*Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 

^ ije ij< ^ ij« ^ >|e 


Hearing 

;^ ;7; ;^ :>c jiic ^ ^ 


by Agency 

:>c :>« »ic sic :>i: 9>e »ie 


to RRC 

jj* sj; 5|tf >«; si; sj; ^ 


Date 

:^ :4e :4« :^ ^ :^ :^ 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* Tlie "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 8 

STATE GOVERNMEIVT RECYCLING, 

REDUCTION OF SOLID WASTE, AND 

PURCHASE OF PRODUCTS WITH 

RECYCLED CONTENT 

WHEREAS, 83% of the 9.5 million tons of solid 
waste generated annually in North Carolina is 
disposed of in landfills; and 

WHEREAS, the State of North Carolina has 
taken significant measures to promote alternatives 
to landfilling and incineration by establishing solid 
waste reduction goals of 25% by 1993 and 40% by 
the year 200 1 ; and 

WHEREAS, source reduction and recycling are 
key elements in a comprehensive approach to 
reducing North Carolina's dependency on landfills 
and incineration for the disposal of solid waste; 
and 

WHEREAS, recovered materials are not truly 
recycled until they are brought back into produc- 
tive use in manufacturing and consumption; and 

WHEREAS, the purchase of recycled products is 
necessary to ensure markets for recyclable materi- 
als, and state government constitutes a large 
consumer of products that are available with 
recycled material content; and 

WHEREAS, the purchase of recycled products 
helps conserve natural resources and reduce energy 
consumption; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, it is ORDERED: 

Section I. PURPOSE 

That all state agencies shall maximize their 
efforts to: (1) reduce the amount of solid waste 
they generate; (2) recycle material recoverable 
from solid waste originating at their facilities; and 
(3) purchase and use products made wholly or in 
part from recycled materials. 

Section 2. RESPONSIBILITIES OF 
STATE AGENCIES 

(a) Applicability 

For the purposes of this Executive Order, 
"state agencies" shall include state gov- 
ernment departments and the University 
of North Carolina. 



(b) Responsibilities 

(1) Each state agency shall be responsible for 
implementing programs to reduce and 
recycle solid waste generated by its oper- 
ations and to purchase and use products 
having recycled content. Such programs 
shall be consistent with, and at least as 
comprehensive as described in, this Or- 
der. Each agency shall designate one or 
more individuals to coordinate and over- 
see its recycling, waste reduction, and 
recycled products purchasing programs, 
and to serve as a liaison with the Office 
of Waste Reduction of the Department of 
Environment, Health, and Natural Re- 
sources. 

(2) The Office of Waste Reduction shall 
provide technical assistance, education 
and training to state agencies on these 
matters, and shall serve as a central point 
of information and coordination for all 
state agency recycling and waste reduc- 
tion efforts. 

(3) The Divisions of Auxiliary Services and 
Facility Management of the Department 
of Administration shall facilitate state 
agencies" recycling efforts as part of their 
regular functions, which include but are 
not limited to overseeing contracts for or 
providing waste hauling and housekeep- 
ing services, and operating the State 
Surplus Property Agency. 

(4) As provided in this Order, the Division 
of Purchase and Contract of the Depart- 
ment of Administration shall aggressively 
explore opportunities for purchasing 
products having recycled content in place 
of those not having recycled content, and 
shall actively promote the purchase of 
recycled products by state agencies and 
others eligible to purchase items from 
state contracts. 



Section 3. SOURCE REDUCTION OF 
WASTE 

(a) General requirements 

To encourage reduction of waste at its 
source, all state agencies shall review 
their operations to determine where solid 
waste can be reduced at its sources of 
generation. Specific measures state 
agencies shall employ to reduce waste at 
the source include but are not limited to 
those identified in this Section. 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



332 



EXECUTIVE ORDER 



(b) Printing and photocopying 

State agencies shall avoid unnecessary 
printing or photocopying of printed mate- 
rials, and shall require two-sided copying 
on all documents when feasible and 
practicable. All new photocopy machines 
purchased shall have duplexing capabili- 
ties if their capacity is rated at sixty 
thousand (60,000) copies or more per 
month. 

(c) Durability, necessity, packaging, and recycl- 

ability 

State agencies shall discourage the use of 
disposable products where reusable prod- 
ucts are available and economically via- 
ble for use. Further, state agencies shall 
assess their waste generation with regard 
to purchasing decisions and make every 
attempt to purchase items only when 
needed and in amounts that are not exces- 
sive. When purchases are necessary, 
state agencies shall, to the extent feasible 
and practicable, acquire durable items or 
items that are readily recyclable when 
discarded, and items having minimal 
packaging. 

Section 4. COLLECTION OF RECYCLABLE 
MATERIALS 

(a) Collection programs for recyclable materials 

(1) As set forth in G.S. I30A-309.14, all 
state agencies shall ensure that employees 
have access to containers for recycling (at 
a minimum) aluminum cans, high-grade 
office paper, and corrugated cardboard. 
All state employees are required to sepa- 
rate identified recyclable materials gener- 
ated in the course of agency operations 
and place them in the appropriate recy- 
cling containers. The provisions of this 
section shall not apply in those situations 
where the agency head makes a written 
determination that their implementation is 
not feasible. 

(2) State agencies that routinely host the 
general public, such as highway rest 
areas, state parks and recreation areas, 
employment security offices, state histor- 
ic sites, etc., shall implement programs 
for the collection and recycling of appro- 
priate materials discarded by the public at 
all such locations (e.g., aluminum, glass, 
and plastic beverage containers) when 
feasible and practicable. State agencies 
shall work closely with the appropriate 



local government agencies when develop- 
ing and implementing these recycling 
programs, 
(b) Education of agency employees 

It shall be the duty of each state agency 
to educate its employees about agency 
recycling/waste reduction goals and 
procedures and to ensure participation. 
The Office of Waste Reduction shall 
assist agencies to develop and implement 
educational programs. Each agency shall 
establish a network of assistant coordina- 
tors to work with the agency coordinator 
in carrying out this responsibility. The 
assistant coordinators shall disseminate 
information about recycling and waste 
reduction policies and programs and 
monitor participation in programs and 
report any problems, suggestions, or 
other feedback to the agency's designated 
coordinator. 

Section 5^ PURCHASE AND USE OF 

PRODUCTS HAVEVG RECYCLED 
CONTENT 

To help develop markets for recyclable materials, 
to support local government recycling efforts 
mandated by G.S. 130A-309.09B, and to set an 
example for local government and the private 
sector, all state agencies shall purchase and use 
products made wholly or in part with recycled 
materials whenever feasible and practicable. 
(a) Purchasing 

(1) In cooperation with the Office of Waste 
Reduction, the Division of Purchase and 
Contract shall make every effort to iden- 
tify products made from recycled materi- 
als that meet appropriate standards for 
use by state agencies. 

(2) Product specifications shall be written to 
encourage vendors to offer products 
having recycled content. When products 
having recycled content are offered that 
are comparable in quality, availability, 
and price to products not having recycled 
content, term contracts shall carry only 
the recycled products. 

(3) Term contracts shall be written in a 
format that prominently identifies prod- 
ucts having recycled content, and these 
products shall be listed in conjunction 
with any comparable products that do not 
have recycled content, to enable agencies 
to readily identify the availability of these 
products. The Division of Purchase and 



333 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



EXECUTIVE ORDER 



^ 



Contract shall prepare a listing of all 
recycled products available on state con- 
tracts on a semi-annual basis, and make 
it available to all potential purchasers to 
increase awareness of opportunities to 
purchase recycled products. 

(b) Recycled Paper 

(1) State agencies are directed to purchase 
and use recycled paper for all letterhead 
stationery, reports, memoranda, and 
other documents when feasible and prac- 
ticable. All new photocopiers purchased 
shall have the ability to use xerographic 
paper having at least 50% recycled con- 
tent. 

(2) State agencies shall attempt to meet the 
following goals for the percent of the 
total dollar value of all paper and paper 
products purchased having recycled 
content: 

Fiscal Year 1993-94: at least 25% 
Fiscal Year 1994-95: at least 35% 
Fiscal Year 1995-96: at least 45% 
Fiscal Year 1996-97: at least 55% 
Fiscal Year 1997-98: at least 65% 

(c) Guidelines 

The Division of Purchase and Contract 
and the Office of Waste Reduction shall 
develop guidelines for minimum content 
standards for recycled products purchased 
by state agencies. 

(d) Departmental Review 

State agencies that have delegated pur- 
chasing authority shall review their exist- 
ing specifications to ensure that they do 
not contain restrictive language or other 
barriers to purchasing recycled products, 
unless such specifications are necessary 
to protect public health, safety, or wel- 
fare. 



The Office of Waste Reduction, in con- 
junction with the Department of Adminis- 
tration, shall provide guidance to agen- 
cies for preparing their annual reports. 
The Office shall compile the agency 
reports and provide an annual report to 
the Governor on progress by state gov- 
ernment agencies in source reduction of 
waste, recycled products procurement, 
and collection of recyclable materials, 
(c) Tracking Recycled Products Procurement 

The Division of Purchase and Contract 
shall review its procurement tracking 
system and determine any changes need- 
ed to facilitate tracking of recycled prod- 
ucts purchased by state agencies and 
others. 

Section 7, EFFECT OF OTHER 
EXECUTIVE ORDERS 

Executive Order 172 is hereby rescinded. All 
other Executive Orders or portions of Executive 
Orders inconsistent herewith are hereby rescinded. 

Section 8^ EFFECTIVE DATE 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capitol City of Raleigh, North 
Carolina this 22nd day of April, 1993. 



> 



Section 6. REPORTING 

(a) State Agency Annual Reports 

On at least an annual basis, beginning 
October 1, 1994, each state agency shall 
report to the Office of Waste Reduction 
for the previous fiscal year the following 
information, at a minimum: activities or 
programs implemented to reduce the 
amount of waste generated by the agen- 
cy; amounts and types of recycled prod- 
ucts purchased; and amounts and types of 
materials collected for recycling by the 
agency. 

(b) Annual Progress Report to Governor 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



334 



PROPOSED RULES 



TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH. AND 

NATLTLAL RESOURCES 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SLrBCIL\PTER 13B - SOLID WASTE 
MANAGEMENT 

iVotice is hereby given that the Commission for 
Health Services is extending the comment period 
for the notice published in the North Carolina 
Register. March 15, 1993. on pages 2720 - 2773 
(7:24 NCR 2720 - 2773). The notice includes the 
adoption of 15A NCAC 13B .1601-. 1604. .1621- 
.1628, .1630-. 1637. .1680 and the amendment to 
15A NCAC 13B .0501 . Public hearings were held 
on .March 30. March 31 and April 1. 1993. 

XVeason for Proposed Action: These rules are 
proposed to implement the new and revised Feder- 
al criteria, published October 9. 1991 under the 
authority of Subtitle D of the Resource Conserva- 
tion and Recover}' Act (RCRA). In 1979, the 
U.S. EPA published 40 CFR Part 257 establishing 
the criteria for classify'ing all sanitan,' landfills. 40 
CFR Part 257 is the basis for the State's permit- 
ting program for sanitarv' landfills set forth in 
Section .0500; the revised 40 CFR Part 257 
excludes municipal solid waste landfills 
(.MSWLFs), which are subject to a new Part 258. 
Rule .0501 is proposed for amendment to reflect 
the change to Part 257 and new Section .1600 - 
Requirements for .Municipal Solid Waste Landfill 
Facilities is proposed for adoption to implement a 
permitting program for the new Part 258 criteria. 
Follouing State approval, the action will qualify 
the Division's program to receive "Approved 
State" status from the U.S. EPA and implement 
standards which meet North Carolina's specific 
needs. Without approval of this action, the 
regulated community will be subject to inflexible 
federal requirements, increased expenditure of 
local funds and complications of the existing 
permit approval process. In addition, current rules 
do not meet the requirements of existing State law 
[G.S. 130A-294(l3)] which requires "rules shall be 
consistent with applicable federal law." 

(comment Procedures: All persons interested in 
these matters must submit vvritten comments to 
Brad Rutledse. Solid Waste Section, P.O. Box 



27687, Raleigh, NC 27611-7687, (919) 733-0692. 
Written comments must be received or postmarked 
by 5:00 p.m. on Friday, May 28, 1993. 

Only persons who have made comments at the 
public hearings held by the Department on these 
rules or who have submitted written comments will 
be allowed to speak at the special Commission 
meeting scheduled for June 30, 1993 in Raleigh, 
NC. Comments made at the Commission meeting 
must either clarify' previous comments or address 
proposed changes from staff pursuant to comments 
made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY 
AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, 
INSTITUTIONS, OR AGENCIES MAKE THEIR 
VIEWS AND OPINIONS KNOWN TO THE 
COMMISSION FOR HEALTH SERVICES 
THROUGH THE COMME.NT PROCESS. 
WHETHER THEY SUPPORT OR OPPOSE ANY 
OR ALL PROVISIONS OF THE PROPOSED 
RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE 
COMMISSION MEETING IF THE CHANGES 
CO.MPLY WITH G.S. 150B-21.2(f). 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coinmissionfor Health 
Services intends to amend rule cited as 15A NCAC 
18A .2537. 

1 he proposed effective date of this action is 
October J. 1993. 

1 he public hearing will be conducted at 1 :30 
p.m. on June 16. 1993 at the Highway Building, 
First Floor Auditorium. 1 South Wilmington Street, 
Raleigh, North Carolina. 



MXeason for Proposed Action: Jlus amendment is 
to prevent enforcement of a rule which might cause 
a serious and unforeseen threat to public welfare. 
Tills amendment is to prevent enforcement of a rule 
that would impose an undue burden on the owners 
of pools operating prior to May 1 . 1991 by requir- 
ing major renovations of bathhouses and locker 
rooms, replacement of existing fences , gates, decks 



335 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



PROPOSED RULES 



and ladders, and the addition of specific depth and 
bottom nuirkings. 

{comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may he presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. 
Persons who wish to speak at the hearing should 
contact John P. Barkley at (919) 733-4618. 
Persons who call in advance of the hearing will be 
given priority on the speaker's list. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearing. Only persons who have made 
conmients at a public hearing or who have 
submitted written comments will be allowed to 
speak at the Commission meeting. Comments 
nuide at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES. 
ASSOCIATIONS. INSTITUTIONS, OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MA Y MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

tLditor's Note: The temporary rule and the 
agency's findings of need were submitted to the 
Codifier of Rules for review on April 30, 1993. 
TJie Codifier returned the rule and its findings to 
the agency on May 3, 1993 as the Codifier 
determined that the agency failed to meet the 
criteria listed in G.S. 150B-21.1(a). TIte agency 
resubmitted the rule and its findings on May 3, 
1993 with a statement that the rule be entered 
into the North Carolina Administrative Code. 
Therefore, this Rule was filed as a temporary 
amendment effective May 11, 1993 for a period 
of 180 days or until the permanent ride becomes 
effective, whichever is sooner. 



(2) 



(3) 
(4) 



CHAPTER 18 - ENVIRONMENTAL 
HEALTH 

SUBCHAPTER 18 A - SANITATION 

SECTION .2500 - PUBLIC 
SWIMMING POOLS 

.2537 MAINTENANCE AND OPERATION 

(a) All public swimming pools constructed or 
remodeled on or after May 1, 1991 shall be 
maintained and operated in accordance with the 
Rules of this Section. 

(b) On or after May 1, 1993 all public 
swimming pools including those constructed prior 
to May 1, 1991 shall be maintained and operated 
in accordance with the following: 

(1) All safety provisions of Rule .2530 (a) 
and (b) of this Section shall be met. 
Decks shall be structurally sound. -trnd 
provide uniform walking surface with 
no offset greater than on e half inch (1.3 
cm ) . 

There shall be no loose coping. 
Artificial lighting shall be provided m 
accordance with — R«te — .252 4 of this 
Section for all pools used when natural 
lighting is not sufficient to make all 
parts of the pool and pool area clearly 
visible. 

Fences and gate s s hall be con s tructed 
and maintained in accordance with Rule 
.252 8 of thi s Section except that public 
swimming pools built prior to May 1 , 
1993 are not required to relocate gates 
or doors to meet provisions of Rule 
.252 8 (6) of this Section. Swimming 
pools shall be protected by a fence, 
wall, building, or other enclosure, or 
any combination thereof. which 
completely encloses the swimming pool 
area. All gates and doors shall be 
equipped with self-closing and positive 
self-latching closure mechanisms. 
Existing waterslide flumes and other 
appurtenances are not required to be 
located inside the fence. 
Floating — safety — rope s — etftd — bottom 
markings shall be provided as required 
in Rule .2523 of thi s Section where the 
slope of the pool bottom exceed s 1 to 
10 vertical ri s e to horizontal di s tance. 
f7) Depth markings shall be provided. 
as described — m — Rtt4e — .2523 of this 
Section. 



(5) 



t^ 



i6] 



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336 



PROPOSED RULES 



(7) ^%j Drain covers shall be in good 
condition and securely attached. 

(8) f9-> Damaged face plates or fittings shall 
be repaired or replaced. 

(9) f+O) Underwater light niches shall be 
maintained or covered so as not to 
present a potential hazard to bathers. 

f]-!-) Surface skimmers shall be maintained 

in vv'orking condition with ba s kets and 
v-'cirs in place. — Overflow gutters and 
grates shall be maintained in "A'orking 
condition. 

Pool ladders with non skid trends and 
stair railings shall be maintained and 
s ecurely fastened in place. — Contrasting 
color band s at least two inche s wide 
shall be applied and maintained on the 
leading edge of stair treads. 
H^ Dising equipment and pool slides 
including stairs and railing shall be 
maintained in good vvorking order. 

Sraruton- Aurhorin- G.S. 130A-282. 



H^ 



xx>c>:>c>(>(>::s 



;^ :^ ;;c ;;c 



iSotice is hereby given in accordance with G.S. 
150B-2L2 that the EHNR - N. C. Zoological Park 
intend.'^ to amend rule cited as 15A NCAC 22B 
.0503 

1 he proposed effective date of this action is 
August 2. 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): 

Anx personCs) requesting a public hearing on the 
proposed rule must submit a written request by 5- 
29-93. Tlie request must be submitted to: Dwight 
M. Holland. Director, N. C. Zoological Park, 
4401 Zoo Parkway, Asheboro, NC 27203. 

tveason for Proposed Action: To increase special 
events and fimdrai sing opportunities and produce 
more revenues for the Zoo. 

K^onunent Procedures: Interested persons may 
contact Dwight M. Holland at (919) 879-7101 for 
more information regarding this rule. Written 
comments will be received for 30 days after publi- 
cation of the notice. Tlie request must be submit- 



ted to: Dwight Holland, Director, N. C. Zoologi- 
cal Park, 4401 Zoo Parkway. Asheboro. NC 
27203. Mailed written comments must be post- 
marked no later than 6-13-93. 

CHAPTER 22 - NORTH CAROLINA 
ZOOLOGICAL PARK REGLXATIONS 

SL^CHAPTER 22B - CENTRAL 
PROVTSIONS 

SECTION .0500 - DISORDERLY CONT)UCT: 
PL'BLIC NXTS.WCE: ETC. 

.0503 LNTOXICATEs'G LIQUORS: 
CONTROLLED SL'BSTANCE 
OR BEVTRAGES 

(a) A person shall not possess or consume any 
beer, wine, whiskey, controlled substance, or any 
other intoxicating substance within any state park 
except that alcoholic beverages mav be sers'ed at 
a specific event at the Zoo authorized in writins bv 
the Director of the Zoo. 

(b) A person shall not be or become intoxicated 
while within any state park. 

(c) A person shall not sell or attempt to sell any 
beer, wine, whiskey, controlled substance, or any 
other intoxicating substance within any state park. 

Statutory Authority- G.S. 1 ]3-264(aJ. 

TITLE 20 - DEPARTMENT OF 
STATE TREASLTtER 

f\ otice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Trustees of the Teach- 
ers and State Employees' Retirement System and 
the Board of Trustees of the Local Government 
Retirement System intends to amend rules cited as 
20 NCAC 2A .0101. .0201 - .0202, .0301 - .0302, 
.0401 - .0402. 

1 he proposed effective date of this action is 
August 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person requesting that the Boards of 
Trustees hold a public hearing on the proposed 
amendment must submit a written request by June 
1 , 1993. to Stephen F. Albright, APA Coordinator, 
Department of State Treasurer, 325 N. Salisbury 
Street. Raleigh. NC 27603. 



337 



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PROPOSED RULES 



IVeason for Proposed Action: To recognize the 
new fUnds for which the Retirement Systems Divi- 
sion is responsible. 20 NCAC 2A .0402 - To 
recognize the new fund for which the Retirement 
Systems Division is responsible and the liquidation 
of a pre-existing find. 

(comment Procedures: Written comments should 
be submitted to Stephen F. Albright, APA Coordi- 
nator, Department of State Treasurer, 325 N. 
Salisbury Street, Raleigh, NC 27603. 

CHAPTER 2 
RETIREMENT SYSTEMS 

SUBCHAPTER 2A - DIVISIONAL RULES 

SECTION .0100 - ORGANIZATIONAL 
RULES 

.0101 ORGANIZATION: AUTHORITY 

The retirement systems division provides the 
staffing for the administration of the following 
agencies. The agencies and the statutory authority 
of each are: 

(1) Teachers' and State Employees' Retire- 
ment System of North Carolina -- G.S. 
135, Article I; 

(2) North Carolina Local Governmental 
Employees' Retirement System — G.S. 
128, Article 3; 

(3) Public Employees' Social Security Agen- 
cy - G.S. 135, Article 2; 

(4) Legislative Retirement System of North 
Carolina - G.S. 120-4, Article lA; 

(5) Consolidated Judicial Retirement System 
of N.C. - G.S. 135, Article 4; 

(6) Supplemental Retirement Income Plan of 
North Carolina — G.S. 135, Article 5; 

(7) Disability Income Plan of North Carolina 
- G.S. 135, Article 6t^ 

(S) Firemen's and Rescue Squad Workers' 
Pension Fund — G.S. 58, Article 86; 

(9) Register of Deeds' Supplemental Pension 
Fund - G.S. 161, Article 3. 

Statutory Authority G.S. 128-28(g): 135-60. 

SECTION .0200 - RULE-MAKING 
PROCEDURES 

.0201 ESTABLISHMENT OF PROCEDURAL 
RIGHTS 



The rules in 20 NCAC IF .0100 establish 
rule-making procedures for the Retirement Systems 
and health benefits Division. All correspondence 
with the Retirement Systems and health benefits 
Division should be addressed to: 

Director of the Retirement Systems 

Albemarle Building 

325 North Salisbury Street 

Raleigh, North Carolina 27603 37644. 



Statutory Authority' 
128-28(g). 



G.S. 150B-12: 135-6(f): 



.0202 DEFINITIONS 

The following definitions apply to rule-making in 
20 NCAC IF .0100: 

(1) The "Division" is the Retirement Systems 
and health benefits Division and includes 
the agencies enumerated in 20 NCAC 2A 
.0101. 

(2) The "Chief Officer" is the Director of the 
Retirement Systems. 

Statutory Authority G.S. 135-6(0: 128-28(g). 

SECTION .0300 - DECLARATORY 
RULINGS 

.0301 ESTABLISHMENT OF PROCEDURAL 
RIGHTS 

The rules in 20 NCAC IF .0200 establish 
declaratory ruling procedures for the Retirement 
Systems and health benefits Division. 

Statutory Authority G.S. 135-60: 128-28(g). 

.0302 DEFINITIONS 

The following definitions apply to declaratory 
rulings in 20 NCAC IF .0200: 

( 1 ) The "Division" is the Retirement Systems 
and health benefits Division; 

(2) The "Chief Officer" is the Director of the 
Retirement Systems. 

Statutory Authority G.S. 135-6(f): 128-28(g). 

SECTION .0400 - CONTESTED CASE 
PROCEDURES 

.0401 ESTABLISHMENT OF PROCEDURAL 
RIGHTS 

The rules in 20 NCAC IF .0300 establish con- 
tested case procedures for the Retirement Systems 
and health benefits Division, with following ainendments: 

(1) Informal resolution of the problem begins 



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338 



PROPOSED RULES 



when a person calls, writes, or visits the 
state retirement system's office and 
describes the problem to a counselor/field 
representative; 

(2) If the problem is not resolved during this 
initial contact, the person will be referred 
to the administrator of the appropriate 
section; 

(3) If the problem is not resolved at this 
level, the person should discuss it with 
the Assistant Director of the Retirement 
Systems; 

(4) If the aggrieved person is dissatisfied at 
this point, he should discuss his difficulty 
with the Director of the Retirement 
Systems. 

Statutory Authority G.S. 150B-23: IJ5-6(f): 
128-28(i;). 

.0402 DEFINITIONS 

The following definitions apply to the contested 
case procedures in 20 NCAC IF .0300: 

( 1 ) The "Division" is the Retirement Systems 
and health benefit s Division; 

(2) The "Chief Officer" is the Director of the 
Retirement Systems; 

(3) The "Appropriate Board" is either the 
Board of Trustees of the Teachers' and 
State Employees' Retirement System or 
the Board of Trustees of the Local 
Governmental Employees' Retirement 
System or the Board of Trustees of the 
Law Enforcement Officers' Retirement 
System Firemen's and Rescue Squad 
Workers' Pension Fund. 

Statutory Authority G.S. 135-6(f],- I28-28(gJ. 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Trustees of the 
Firemen 's and Rescue Squad Workers ' Pension 
Fund intends to amend rules cited as 20 NCA C 2N 
.0105 - .0107. .0210 - .0211; adopt rule cited as 
20 NCAC 2N .0108 and repeal rules cited as 
.0305 - .0313. Editor's Note: Tlw rules codified 
as 3 NCAC 3 have been tran.\fcrred from the 
Department of State .Auditor to the Department of 
State Treasurer and are codified as 20 NCAC 2N 
effective May 1, 1993. 



1 he proposed effective date of this action is 
August 1. 1993. 

1 he public hearing will he conducted at 10:00 
a.m. on June 17, 1993 at the Albemarle Bldg, 
Conference Room, Room 100. 325 N. Salisbury 
Street, Raleigh. NC 27603. 

Ixeasonfor Proposed Action: Transfer of Pension 
Fund from the Department of State Auditor to the 
Department of State Treasurer. 

i^omment Procedures: A written copy of the 
comments will be required of all persons wishing 
to speak at the public hearing. All written 
comments must be received by 4:30 p. m. on June 
17, 1993. Written comments should be sent to 
Stephen F. Albright. APA Coordinator. 
Department of State Treasurer. 325 N. Salisbur\- 
Street. Raleigh. NC 27603. 

CHAPTER 2 - RETIREMENT SYSTEMS 

SUBCHAPTER 2N - NORTH CAROLINA 
FIREMEN'S PENSION FUND 

SECTION .0100 - ORGANIZATION 
OF THE FUND 

.0105 DEFINITIONS 

As used in this Sub chapter: 

(1) "Board" means the Board of Trustees of 
the North Carolina Firemen's and Rescue 
Squad Workers' Pension Fund. 

(2) "Chairman" means the Chairman of the 
Board of Trustees of the North Carolina 
Firemen's and Rescue Squad Workers' 
Pension Fund. 

(3) "Director" means the Director of ike 
North — Carolina Firemen's and — Rescue 

Squad Workers' Pension Fund 

Retirement Systems Division of the 
Department of State Treasurer . 

(4) "Member" means a member of the North 
Carolina Firemen's and Rescue Squad 
Workers" Pension Fund. 

(5) "Pension fund" means the North Carolina 
Firemen's and Rescue Squad Workers' 
Pension Fund. 

Statutory- Authority' G.S. 58-86-10. 



339 



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May 14, 1993 



PROPOSED RULES 



.0106 OFFICE OF THE DIRECTOR 

(q) The office of the director is located at Room 
201. Legislative Office Building, 300 N. Salisbury 
St., Raleigh, N.C. 2761 1. The telephone number 
for the office is (919) 733 3275. Office hour s ar e 
from 8 a.m. to 5 p.m.. Mondays through Friday s , 
except legal holidays. 

ih) — The office of the director is part of th e 
Department of the State Auditor and is responsible 
fef — general — day to day — administration — of the 
pension fund in accordance with — G.S. — 1 18 33 
through 1 1 8 4 9 and the rules in thi s Chapter. 

The Office of the Director is located in the 
Albemarle Building. 325 North Salisbury Street, 
Raleigh, North Carolina and the mailing address is 
325 North Salisbury Street, Raleigh, North 
Carolina 27603-1388. Office hours are from 8 
a.m. to 5 p.m., Mondays ; Fridays, except legal 
holidays. 

Statutory Authority G.S. 58-86-10. 

.0107 BOARD OF TRUSTEES 

A majority of the members of the Board of 
Trustees constitute a quorum. The Chairman of 
the Board is the State Treasurer Auditor . The 
Chairman may call meetings of the Board as he 
deems necessary or desirable. The Chairman shall 
call a meeting of the Board if a majority of the 
members of the Board request in writing a 
meeting. 

Statutory Authority' G.S. 58-86-10. 

.0108 DIVISIONAL RULES 

The following rules are hereby incorporated by 
reference including subsequent amendments to the 
rules: 

(1 ) Rules .0101 ; Organization, Authority; 
.0102, Exercise of Authority; .0103, 
Delegation of Authority to Director; of 
20 NCAC 2A. 

(2) Sections .0200, Rule-Making Procedures; 
.0300, Declaratory Rulings; .0400, 
Contested Case Procedures; of 20 NCAC 
2A. 

13J Rule .0504. Direct Report of Monthly 
Benefits; of 20 NCAC 2A. 

Statutory Authority G.S. 58-86-10; 150B-21.6. 

SECTION .0200 - GENERAL PROVISIONS 

.0210 ANNUAL CERTIFICATION OF 
FIREMEN 



(a) In order for a member to receive credit for 
time served as an eligible fireman, the governing 
body of the county or city that the member's fire 
department serves must certify annually: 

( 1 ) that the fire department meets the 
requirements of G.S. 58-86-25 11 8 38 ; 
and 

(2) which members of the fire department 
have met the requirements of G.S. 
58-86-25 118 3 8. 

The certification is due by June 30 of each year. 

(b) The certification must be made on the annual 
certification of firemen form. This form may be 
obtained from the office of the Director at the 
address shown in Rule .0106(a) of this Sub chapter. 
The form asks for information such as name and 
address of the governing body and the fire 
department and the certifications described in 
Paragraph (a) of this Rule. 

(c) Members on leaves of absence under either 
Rule .0214 or .0215 of this Section should be 
included on the roster of members required by 
Paragraph (a) of this Rule. 

(d) Failure to submit an annual certification of 
firemen form by June 30th will result in a 
reduction or delay of benefits. So long as an 
annual certification is delinquent the members to 
be covered by that certification will not receive 
credit for service during the time period to be 
covered by the certification. 

(e) For the purpose of G.S. 58-86-25. "drills 
and meetings" shall be defined as any meeting in 
which the members of the Department conduct 
official departmental business, or, training 
session/drill, in which attendance by the member 
will result in the preparation of, or knowledge 
gained by, the member in the area of fire 
prevention, fire suppression, or protection of life 
and property. Such drills and meetings held by 
the Department to meet the requirements of this 
Section shall be held for the purpose of providing 
a learning and/or preparation experience for the 
members, or participation by the member in the 
business affairs of the Department. 

Statutory Authority G.S. 58-86-10; 58-86-25. 

.0211 ANNUAL CERTIFICATION OF 
RESCUE SQUAD WORKERS 

(a) In order for a member to receive credit for 
service as an eligible rescue squad worker, the 
member's rescue squad must provide the office of 
the director with a certified roster of the members 
meeting the requirements to join the North 
Carolina Association of Rescue Squads. Inc. The 



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May 14, 1993 



340 



PROPOSED RULES 



roster must be certified by the secretary of the 
North Carolina Association of Rescue Squads, Inc. 
The certification is due by January 1 of each year. 

(b) The certification must be made on the annual 
certification of rescue squad workers form. This 
form may be obtained from the office of the 
director at the address shown in Rule .0106(a) of 
this Sub chapter. The form asks for information 
such as the name and address of the rescue squad 
and the certification described in Paragraph (a) of 
this Rule. 

(c) Members on leaves of absence under either 
Rule .0214 or .0215 of this Section should be 
included on the roster of members. 

(d) Failure to submit an annual certification of 
rescue squad workers form by January 1st will 
result in a reduction or delay of benefits. So long 
as an annual certification is delinquent the 
members to be covered by that certification will 
not receive credit for service during the time 
period to be covered by the certification. 

(e) For the purpose of G.S. 58-86-30. "training 
and meetings" shall be defined as any meeting in 
which the members of the Department/squad 
conduct official business, or training session/drill. 
in which attendance by the member will result in 
the preparation of. or knowledge gained by. the 
member in the area of rescue. Emergency Medical 
Services, injury prevention, or protection of life 
and property. Such drills and meetings held by 
the squad to meet the requirements of this Section 
shall be held for the purpose of providing a 
learning and/or preparation experience for the 
members, or participation by the members in the 
business affairs of the Department. 

Statuton' Authority G.S. 58-86-10: 58-86-30. 

SECTION .0300 - ADMINISTRATIVE 
RULEMAKING PROCEDURES 



iS) cffcx!t of the proposal on oxioting rules 

or orders, 

data s upporting the proposal. 






m- 



m- 



effcct — ef — the — proposal — ©n — e xisting 
practices — in area — involved, — including 
cost factors. 



of the 



be 



names — ef — those — mo s t — likely — {©■ 
affected by the propo s al (with addresses 
if known), and 
name( s ) and addrc33(cs) of petitioncr(s). 



Statutory Authority G.S. 118-35; 150B-16. 

.0306 DECISION ON PETITION 

(a) — The chairman will determine, based on a 
study of the facts stated in the [Xitition, whether the 
public — interest — wtH — be s erved — by — granting — er 
denying the petition. — The chairman will consider 
all the contents of the submitted petition s plus any 
additional information deemed relevant, and malcc 
hi s recommendation thereon to the board. 

{b) — Within 30 day s after s ubmission of the 
petition, or at its next regularly scheduled meeting, 
whichever is later, the board will render a final 
decision. — If the deci s ion i s to deny the petition the 
chairman will notify th e pet i t i oner in writing of the 
reasons therefor. — If the decision is to grant the 



petition — the — board — wtH — initiate — a — rule malcing 
proceeding by i ss uing a notice as provided in 3 
NCAC 03 .0308. 

Statutory Authority G.S. 118-35: 150B-16. 

.0307 NOTICE OF RULE-MAKING 



Upon 



determination — te — heW — rule making 
proceedings, cither in response to a petition or 
otherwi se , the board will give 30 day s notice in 
the publication of the North Carolina Register of 
a — public — hearing. — ifl — accordance — with — G.S. 
150B 12. 



.0305 PETITIONS FOR RUT.E-MAKING 

{ft) — Any per s on wishing to s ubmit a petition 
requesting the adoption, amendment, or repeal of 
a rule by the board shall address the petition to the 



jfficc of the director at the addre s 



s speei 



lied- 



Rule .0106 of thi s Chapter. 

fb) — The petition s hould contain the following 
information: 

fH the name of the agency. 



Bh 



draft — of th 



■e — proposed — twe — er 



amendment. 



f^^ a — summary — of the — contents — of the 

propo s ed rule or amendment. 
{M reasons for the propo s al. 



Statutor\- Authority G.S. 118-35: 1508-11 



.0308 ARGUMENTS 

Any per s on de s iring to present data, view s or 
arguments on the propo s ed rule or rule change 
must file a notice with the chairman at the office 



ified 



-Rttk 



of the director at the address speciTied in 
.0106 of thi s Chapter, at lea s t t e n days before the 
hearing. — Such notice may be waived, or failure to 
g+ve — notice — may — be excused — by — the presiding 
officer of the hearing for good cause. — Any person 
permitted — te — make — an — erei — presentation — is 



encouraged — ie — s ubmit — a — writtc 



of the 



copy 
presentation to the chairman at least ten days prior 



341 



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May 14, 1993 



PROPOSED RULES 



to the hearing. 

Statutory Authority G.S. 118-35; 1508-11(1). 

.0309 REQUEST FOR ORAL 
PRESENTATIONS 

A request to malcc an oral proscntation should 
contain a brief summary of the subject upon which 
the individual will speak and an estimation of the 

length of time needed. Pre s entations may not 

exceed five minute s unless the pre s iding officer, 
either before or at the hearing grant s an exten s ion 
of time for good reason. 



Statutory Authority G.S. 118-35; 1508-11(1); 
1508-12. 

.0310 WRITTEN STATEMENT 

fa) — Any person may File a written statement 
containing data, comments or arguments in support 
of or in oppo s ition to a propo s ed ru l e or rule 
change. — Such statements may be filed before, 
during — er — fef — 39 — days — after — the — hearing — by 
delivering the statement by mail or in person to the 
chairman. 

fb) An extension of time for filing written 

statements may be granted cither in the notice of , 
the — particular — rule malcing hearing — er — by — the 
pre s iding officer of the hearing. 

(c) All s uch s ubmitted statements should clearly 
s tate the rule or proposed rule to which the com 
ments are addressed. 

Statutory Authority G.S. 118-35; 1508-11(1). 

.0311 REQUEST FOR STATEMENT OF 
FINAL DECISION 

Any per s on desiring a concise statement of the 
principal reasons for or against the adoption of a 
rule by the board and the factors that led to s u s 
taining or overruling it s adoption may submit a 
written reque s t to the chairman. — Such requests 
may be submitted cither prior to the rule malcing 
hearing or within 30 days thereafter. 

Statutory Authority G.S. 118-35; 1 508- 12(e). 



(4) a record or s ummary' of oral prcsenta 

tions; and 

f§) any statements of the rcaaona for and 

against adoption of a rule issued by the 
board. 
The record will be maintained on file in the office 
of the director. 

Statutory Authority G.S. 118-35; 1508-1 2(e). 

.0313 DECLARATORY RULINGS 

(a) Any person substantially affected by a statute 
admini s tered or rule promulgated by the board 
may request a declarator^' ruling as to how the 
statute or rule applies to a given factual situation 
or whether a particular rule is valid. — All request 
for declaratory rulings shall be in writing and 
delivered to the chairman at the office of the 
director. 

(b) Whenever the board believes for good cause 
that issuing a declaratory ruling is inappropriate, 
it may refuse to do so. The board shall notify the 
petitioner of its decision in writing stating the 
reasons for the denial of the declarator^' ruling. 

Statutory Authority G.S. 118-35; 1508-17. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

iSotice is hereby given in accordance with G.S. 
1508-21.2 that the North Carolina 8oard of 
Mortuary Science intends to adopt rules cited as 
21 NCAC 34A .0125 - .0126; 34D .0104 - .0105; 
amend rules cited as 21 NCAC 34A . 0201 and 34D 
.0301. 

1 he proposed effective date of this action is 
August 2, 1993. 

1 he public hearing will be conducted at LOG 
p.m. on June 15, 1993 at the Student Center 
8oard Room, Fayetteville Technical Conummity 
College, 2201 Hull Road, Fayetteville, NC 28303. 



.0312 RECORD OF RULE-MAKING 

A record of all rule malcing hearings will be 
maintained as long as the rule is in effect and for 
five years thereafter. — This record s hall contain: 

fH the original petition or petitions; 

(3) the notice; 

f3) all written memoranda and information 

s ubmitted; 



Ixeason for Proposed Action: 
21 NCAC 34A .0125 - To provide for fingerprint 
checks to facilitate determination of character of 
applicants for resident traineeship and licensure. 
21 NCAC 34A .0126 - To provide for screening of 
complaints and for determining probable cause of 



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342 



PROPOSED RULES 



law violations. 

21 NCAC 34 A .0201(a) - To reduce toiul license 
fees of persons holding both fitneral director's and 
emhalmer 's licenses. 

21 NCAC 34D .0104 - To provide that fimm shall 
indicate that they are approved by Board and date 
of approval to assure use of only current, ap- 
proved forms. 

21 NCAC 34D .0105 - To require that copies of 
prcneed contracts be filed with Board so Board 
can monitor them. 

21 NCAC 34D .0301(d) - To provide for records 
retention so Board can inspect them. 

(comment Procedures: Interested persons may 
present statements, orally and in writing, at the 
public hearing and in writing prior to the hearing 
b\ nuiil addressed to the C Board of Mortuary- 
Science. Bo.x 27368. Raleigh. NC 27611-7368. 

CHAPTER 34 - BOARD OF 
MORTUARY SCIENCE 

SUBCHAPTER 34A - BOARD FUNCTIONS 

SECTION .0100 - gent;r.\l PROMSIONS 

.0125 FINGERPRINTS 

The Board shall require applicants for registra- 
tion as resident trainees and for licensure to submit 
to a fingerprint check: pro\ided. howex'er. the 
Board may v.'ai\e this requirement for an applicant 
for licensure who pre\iouslv submitted to a finger- 
print check as an applicant for registration as a 
resident trainee. 

Statutory Authority G.S. 90-21 0.23(a): 90- 
210.25(a)(1). (2), (3). (4): 90-21 0.25(e)(1): 90- 
210.43(f): 90-2I0.50(a): 90-210. 67(b). (c): 90- 
210.69(a). (c). 

.0126 COMPLALNTS: PRELIMINARY 
DETER.\nNATIONS 

(a) A person who believes that any person, firm 
or corporation is in violation of an\' pro\ ision of 
G.S. 90. Article 13A. 13C or 13D. or Title 21. 
Chapter 34. of the North Carolina Administrati\e 
Code, may file a written complaint with the 
Board's staff. If the accused is subject to the 
jurisdiction of the Board, the complaint shall be 
handled pursuant to this Rule. 

(b) A complaint shall be handled initiall\- by the 
Board's Executive Secretan,'. Director of Pre need 
Regulation or their staff designees. v.'ho ma\' 



dismiss it as unfounded, frivolous or trivial. 



Complaints against persons subject to the Board's 
jurisdiction pursuant to G.S. 90. Article 13A and 
13C. shall be handled by the Executive Secretary' 
or staff designated by him or her, and complaints 
against persons subject to the Board's jurisdiction 
pursuant to G.S. 90. Article 13D. shall be handled 
by the Director of Pre need Regulation or staff 
designated by him or her. 

(c) Unless the complaint is dismissed pursuant to 
Paragraph (b) of this Rule, the Executive 
Secretary'. Director of Preneed Regulation or their 
staff designees shall notify the accused of the 
complaint m writing. Such notice shall be sent by 
certified mail, return receipt requested: shall state 
the allegations as contained in the complaint, or 
may enclose a copy of the complaint: and shall 
contain a request that the accused submit a 
response in writing within 10 days from the date 
the notice of the complaint is received by the 
accused. 

(d) if the accused admits the allegations, and if. 
in the opinion of the Executive Secretary. Director 
of Preneed Regulation or their staff designees, the 
matter does not merit reviev.' by the Board's 
disciplinary' committee, the Executive Secretary'. 
Director of Preneed Regulation or their staff 
designees shall accept the admission of guilt and 
shall acknoyvledge the admission in a letter to the 
accused. 

(e) If the accused admits the allegations, and if. 
in the opinion of the Executive Secretary. Director 
of Preneed Regulation or their staff designees, the 
matter merits review by the Board's disciplinary 
committee, the Executive Secretary. Director of 
Preneed Regulation or their staff designees shall 
refer the matter to the committee. After reviewing 
the allegations and response, the committee shall 
make a preliminary determination of the charges 
and shall recommend to the Board yvhich of the 
actions in Paragraph (h) of this Rule should be 
taken. 

(f) If the accused does not respond to or denies 
the allegations, the Board's Executive Secretary. 
Director of Preneed Regulation or their staff 
designees shall investigate the allegations, and they 
may dismiss the complaint as unfounded. fri\olous 
or trivial, or may refer the complaint, response, if 
any, and any other available evidence to the 
Board's disciplinary' committee for reviev.'. From 
such re\iew. the committee shall make a 
preliminary' determination and shall recommend to 
the Board which of the actions [n Paragraph (h) of 
this Rule should be taken. 

(g) The complaint, response, if any, other 



343 



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May 14, 1993 



PROPOSED RULES 



evidence and disposition of each case shall be 
placed in a permanent File of the accused. When 
a second complaint is filed against the accused 
during a period of twelve months, or a third 
complaint is filed against the accused during any 
period of time, the Executive Secretary. Director 
of Preneed Regulation or their staff designees shall 
present the file to the disciplinary committee for a 
review. From such review, the committee shall 
make a preliminary determination of the new 
complaint and shall recommend to the Board which 
of the actions in Paragraph (h) of this Rule should 
be taken. 

(h) in accordance with Paragraphs (e) through 
(g) of this Rule, the disciplinary committee shall 
review the complaint and the file, if applicable, 
shall make a preliminary determination, and shall 
recommend to the Board that one of the following 
actions be taken: 

(1) that the complaint be dismissed as 
unfounded, frivolous or trivial; 

(2) that, in the case of an alleged violation 
of G.S. 90. Article I3A. the case be 
compromised pursuant to G.S. 
90-210.25(e)(l) or that it be set for a 
contested case hearing in accordance 
with G.S. 150B. Article 3A. and the 
rules of the Board; 

(3) that, in the case of an alleged violation 
of G.S. 90. Article I3C. the case beset 
for a contested case hearing in 
accordance with G.S. I50B. Article 
3A. and the rules of the Board; or 

(4) that, in the case of an alleged violation 
of G.S. 90. Article 13D. the case be set 
for a contested case hearing before an 
administrative law judge, as provided 
by G.S. 90-210. 69(e). 

(i) The Board may accept or reject, in whole or 
in part, the recommendations of the disciplinary 
committee. 

Statutory Authority G.S. 90-2 10. 23 (a): 90- 
210.25(e): 90-210.43[f). (g); 90-2]0.50(a); 90- 
210.69. 

SECTION .0200 - FEES AND OTHER PAYMENTS 

.0201 FEES AND PENALTIES 

(a) Fees for funeral service shall be as follows: 

Establishment permit 

Application $250.00 

Annual renewal $150.00 

Late renewal penalty $100.00 

Establishment reinspection fee $100.00 



8:4 NORTH CAROLINA REGISTER May 14, 1993 344 



PROPOSED RULES 



(b) 



(c) 



Courtesy card 

Application 

Annual renewal 
Out-of-state licensee 

Application 
Embalmer, funeral director, funeral service 

Application, North Carolina resident 

Application, non-resident 
Annual renewal 

Embalmer 

Funeral director 

Funeral service 

Reinstatement fee 
Resident trainee permit 

Application 

Annual renewal 

Late renewal penalty 
Duplicate license certificate 
Chapel registration 

Application 

Annual renewal 
Fees for crematories shall be as follows: 
License 

Application 

Annual renewal 

Late renewal penalty 
Crematory reinspection fee 
Per-cremation fee 
Fees for preneed funeral contract regulation shall be as follows: 
Preneed funeral establishment license 

Application 

Annual renewal 
Preneed sales license 

Application 

Annual renewal 



$ 4 0.00 
$ 4 0.00 



$ 75.00 
$ 50.00 

$200.00 

$150.00 
$200.00 



5 
$ 



30.00 
30.00 
60.00 
50.00 

50.00 
35.00 
25.00 
25.00 



$150.00 
$100.00 



$400.00 
$150.00 
$ 75.00 
$100.00 
$ 5.00 



$100.00 
$100.00 

$ 10.00 
$ 10.00 



Statutory Authority G.S. 90-21 0.23(a); 90-210.28; 90-210.48; 90-210.67(b), (c). 



SUBCHAPTER 34D - PRENEED FUNERAL 
CONTRACTS 

SECTION .0100 - GENERAL PROVISIONS 



Within 10 days following the sale of a preneed 
funeral contract, any person selling the contract 
shall send a copy of it to the Board, accompanying 
the fee required by G.S. 90-210. 67(d). 



.0104 INDICATION OF APPROVAL OF 
FORMS 

Every form provided or approved by the Board 
shall contain words indicating that it is a pproved 
by the Board and the month and year of tlie ap- 
proval. 

Statutory Authority^ G.S. 90-210. 69(a); 90- 
210.62(b). 

.0105 CONTRACT COPIES TO BE FILED 



Statutory Authority G.S. 90-21 0.69(a); 90- 
210.62(h); 90-210. 67(d); 90-21 0.68(a). 



SECTION .0300 - OPERATIONS 



.0301 



RECORD AND BOOKKEEPING 
REQUIREMENTS 

(a) Each preneed funeral establishment licensee 
shall maintain at the address stated on its license a 
general file containing; 

(1) a copy of each of its license 
applications, including applications for 



345 



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PROPOSED RULES 



license renewals; 

(2) copies of all preneed examination re- 
ports; and 

(3) copies of all annual reports to the 
Board. 

(b) Each such licensee shall maintain, at the 
same address, files containing all preneed funeral 
contracts purchased. The files shall be maintained 
separately for outstanding contracts and for ma- 
tured or cancelled contracts. The outstanding 
contract file shall include a copy of each preneed 
contract filed alphabetically or numerically. The 
matured or cancelled contract file shall contain a 
copy of each preneed contract, together with a 
copy of the certificate of performance, and shall be 
filed either chronologically or alphabetically by 
year. 

(c) Each such licensee shall maintain, at the 
same address, the following records: 

(1) a contract register listing the 
purchaser's name and final disposition 
of the contract; 

(2) a separate cash journal or separate cash 
receipt book designated for preneed, 
showing all preneed payments 
collected; 

(3) an individual ledger for each contract 
purchaser showing the purchaser's and 
beneficiary's names, amount of the 
contract, amount paid on the contract, 
amount retained free of trust pursuant 
to G.S. 90-210.61 (a)(2), deposits to 
trust, withdrawals from trust as 
permitted by law and the reasons 
therefor, interest on deposits, total 
amount of the trust, and amounts paid 
to insurance companies for insurance- 
funded contracts; 

(4) copies of bank statements and deposit 
slips from financial institutions in which 
trust funds are deposited, certificate of 
deposit records, including both 
principal and interest transactions and 
trust accountings; and 

(5) copies of applications for insurance, 
insurance policies, beneficiary designa- 
tion documents and instruments of 
assignment. 

(d) The copies required to be maintained by 
Paragraph (a) of this Rule shall be retained a 
minimum of ten years following their origination. 
The copies and records required to be maintained 
by Paragraphs (b) and (c) of this Rule shall be 
retained a minimum of ten years following the 
substitution of a different funeral establishment to 



perform the preneed funeral contract, the revoca- 
tion of the preneed funeral contract or the death of 
the contract beneficiary, whichever occurs first. 

(4) (e} Individual ledgers and records of the 
depository financial institutions shall be balanced 
at least annually to ensure accuracy. 

Statutory Authority G.S. 90-2 10. 69(a); 90- 
210.68(a). 






:{c:{;:Jc:{c^:{{:}::]c:Jc:{i:Jc 



iS otice is hereby given in accordance with G.S. 
1508-21. 2 that the N. C. State Board of Examiners 
for Nursing Home Administrators intends to amend 
rules cited as 21 NCAC 37 .0211, .0303, .0308. 
.0404, .0501 - .0502, .0504- .0505, .0508, .0512, 
.0514, .0517. .0519, .0603, .0701 - .0707, .0901, 
.0903, .0912 and repeal rules cited as .0509, 
.0708- .0709. 



1 he proposed effective date of this action L 
August 2, 1993. 



IS 



1 he public hearing will be conducted at 10:00 
a.m. on June 2, 1993 at 3700 National Drive, 
Room 104, Raleigh, NC 27612. 

iveason for Proposed Action: Rules revised for 
clarification and definitions with some necessary 
changes to comply with national examinations and 
costs. Changes also made to respond to a request 
petitioned by the industry. 

l^omment Procedures: Written convnents may be 
sent to N. C. State Board of Examiners for Nursing 
Home Administrators . 3701 National Drive, Suite 
123. Raleigh, NC 27612 through June 14. 1993. 
Request for an opportunity to present oral testimo- 
ny at the Public Hearing and a summary of the 
testimony must he received at this address no later 
than May 28. 1993. 

CHAPTER 37 BOARD OF IVURSEVG 
HOME ADMINISTRATORS 

SECTION .0200 - PREREQUISITES TO 
LICENSURE 

.0211 ORAL INTERVIEW 

An Th« applicant must appear before the Board 



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346 



PROPOSED RULES 



for a personal interview as required by the Board 
in accordance with the provisions as outlined in 
Sections .0500 and .0900 of this Chapter, before 
the Board issue s approval of AIT program. — The 
applicant's — preocptor — must — appear — with — the 
applicant at the interview, as required by Rule 
.0509(a) of this Chapter. 

Statutory Authority G.S. 90-278; 90-285. 

SECTION .0300 - APPLICATION FOR 
LICENSE 

.0303 REFERENCES 

(a) A candidate for licensure shall submit with 
his application three current — original — letters 
reference forms (one of which must be from a 
previous employer) from individuals who shall 
certify to the good moral character of the 
applicant. 

(b) It shall be prima facie evidence of good 
moral character if a candidate has not been 
convicted by any local, state, federal . or military 
court of any crime involving the use, carrying, or 
possession of a firearm; conviction of any crime 
involving the use, possession, sale, manufacture, 
distribution, or transportation of a controlled 
substance, drug, narcotic, or alcoholic beverage; 
conviction of a crime involving assault or an act of 
violence; conviction of a crime involving breaking 
or entering, burglary, larceny, or any offense 



involving moral turpitude; or does not have a 
history of addiction to alcohol or a narcotic drug; 
provided that, for purposes of this Rule, 
"conviction" means and includes the entry of a 
plea of guilty or no contest or a verdict rendered 
in open court by a judge or jury. 

Statutory Authority G.S. 90-278; 90-285. 

.0308 RECEIPT OF APPLICATIONS 

All applications for licensure must be received in 
the Board's office a minimum of tw© three weeks 
prior to the meeting of the Board at which the 
application is to be considered. All items required 
to be provided to constitute a full application must 
be received by this date. 

Statutory Authority G.S. 90-285. 

SECTION .0400 - COURSES OF STUDY 

.0404 CONTINUING EDUCATION 
PROGRAMS OF STUDY 

(a) The Board shall certify and administer 



courses in continuing education for the 
professional development of nursing home 
administrators and to enable persons to meet the 
requirements of these Rules. It is the 

responsibility of the licensee to keep a record of 
his continuing education hours. Certified courses, 
including those sponsored by the Board, an 
accredited university, college or community 
college, associations, professional societies, or 
organizations shall: 

(1) contain a minimum of two classroom 
hours of academic work and not more 
than eight classroom hours within a 
24-hour period; and 

(2) include instruction in the following 
general subject areas or their 
equivalents: 

(A) applicable standard s of environmental 
health — and — s afety Resident Care 
Management ; 

(B) local — health — and safety — regulations 
Personnel Management ; 

(C) general admini s tration Financial 

Management ; 

(D) psychology &4 patient eftfe 

Environmental Management ; 

(E) principles of medical care Regulatory 
Management ; 

(F) personal a*^ social care; 

Organizational Management. 

■(G) — therapeutic and supportive care and 
services in long term care; 

(H) — departmenta l organization aftd 

management; 

fi) community interrelationships. 

(b) Certified courses not administered by the 
Board shall: 

(1) be submitted to the Board for approval 
at least 30 days prior to the presentation 
of the program; 

(2) be accompanied with a fee of 
twenty-five dollars ($25.00) to cover 
the cost of reviewing and maintaining 
records associated with the continuing 
education program; and 

(3) be approved for a period of one year 
from the date of initial presentation. 

(c) The Board shall charge a fee for courses 
sponsored by it in an amount sufficient to cover 
the Board's costs. 

Statutory Authority G.S. 90-278; 90-280; 90-285; 
90-286. 

SECTION .0500 - ADMINISTRATOR- 



347 



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PROPOSED RULES 



IN-TRAESfING 

.0501 TRAINING REQUIREMEIVT 

Each applicant for initial licensure shall complete 
an AIT program under the direction of a preceptor 
unless he is exempt from this requirement under 
G.S. 90-278(I)d or Rule .0520 .0519(a) of this 
Section. 

Statutory Authority G.S. 90-278; 90-285. 

.0502 APPLICATION TO BECOME 

ADMINISTRATOR-IN-TRAINING 

(a) The applicant will submit to the Board an 
application, which shall contain such information 
as name, education, employment history, questions 
pertaining to moral character, and any other 
information the Board may require to process an 
application according to these Rules , and an 
affidavit stating that the applicant, if granted a 
license, will obey the laws of the state and the 
rules of the Board, and will maintain the honor 
and dignity of the profession. 

(b) The applicant will submit a background 
resume indicating the areas in which he is 
competent or lacking. 

(c) The applicant will submit three current 
original letters of reference reference forms which 
shall certify to his or her good moral character as 
required and defined by Rule .0303 of this 
Chapter. 

(d) The applicant will supply a certified copy of 
each college transcript indicating the courses 
completed and hours earned, specifying whether 
semester or quarter hours. Instead of a transcript 
the applicant will supply documentation of his 
supervisory experience in a nursing home if he is 
utilizing the experience substitute for the education 
requirement as allowed by General Statute 
90-278(1 )b. 

(e) The preceptor shall submit to the Board three 
weeks prior to the personal interview, a 
recommended number of weeks and an 
individualized curriculum for the AIT program that 
shall provide the AIT with on the job experience 
in the six subject areas outlined in Section .0700 of 
this Chapter. 

ifl fe) A fee of one hundred dollars ($100.00) 
shall be submitted with the application. 

(g) An AIT applicant must maintain at all times 
a current mailing address with the Board office. 

Statutory- Authority G.S. 90-278; 90-280; 90-285. 

.0504 TRAINING PERMIT 



(a) After the interview and approval, the Board 
shall issue an AIT training permit to the applicant 
for a maximum one-year period beginning on the 
date the permit is issued. 

(b) Should the trainee AIT not maintain 
acceptable standards and submit the required 
reports, the Board shatt may place the applicant 
AIT on probation or may rescind the AIT training 
permit. 

Statutory Authority G.S. 90-278; 90-285. 

.0505 ADMINISTRATOR-IN-TRAINING 
SELECTION 

(a) From an approved list of preceptors, the 
trainee AIT applicant will select a preceptor of his 
choice prior to submitting application to the Board. 

(b) It shall be the responsibility of the trainee 
AIT applicant to contact a preceptor to determine 
if the preceptor will accept the AIT applicant . 

(c) Once a preceptor accepts an AIT applicant , 
the preceptor must submit to the Board a written 
statement that he or she is willing to serve as a 
preceptor. 

(d) The preceptor shall notify the Board of the 
starting date of acceptance the AIT program and 
the date of any discontinuance of trainecship . 

(e) Any change in preceptor must be approved 
by the Board. 

Statutory Authority G.S. 90-278; 90-285. 

.0508 PRECEPTOR QUALIFICATIONS 

(a) To be certified as a preceptor the nursing 
home administrator must: 

f4^ exemplify — the — highest — ethical — and 

profe ss ional s tandards; 

(1) fS^have practiced in the field of nursing 
home administration a minimum of two 
years or have a masters degree in health 
care administration^; — hav e and has 
practiced in the field a minimum of one 
year , and ^ 

(2) certify that no revocation proceeding, 
suspension of admissions, or 
provisional license other than the initial 
provisional license has been initiated or 
is in effect issued against his /her 
facility(ies); 

(3) express himself well and be at ease in a 
teaching situation; 

(4) be the full time administrator of a 
facility that which is licensed by the 
Division of Facility Services as a 
nursing home and be physically present 



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348 



PROPOSED RULES 



in the facility a minimum of tliree days 
per week; 

(5) successfully complete a preceptor 
training course approved by the Board; 
and 

(6) complete 40 hours of continuing 
education during the 24 months 
preceding application for certification. 

(b) A preceptor must be recertified biennially 
each t' l V'o ycaro by the Board in accordance with 
the qualifications as set out in Paragraph (a) of this 
Rule at the time of license renewal . 

(c) The preceptor and the AIT shall spend a 
minimum of four hours per week in orientation, 
direct instruction, planning and exaluation. 

(d) An administrator licensed by 
reciprocity/endorsement who held an active 
preceptor certificate in another state may also 
recei\'e a North Carolina preceptor certificate if all 
other requirements are met. 

(e) Any administrator who otherwise meets all 
requirements of this Rule except for completion of 
the approved course under Subparagraph (a)(5) of 
this Rule and who has previously been certified as 
a preceptor may be issued a temporary preceptor 
certificate by the Board Chairman until such 
course is completed. 

Statutory Authority G.S. 90-278; 90-285. 

.0509 PROGRAM AND CLTiRICLXUM 

fa-) Tive — length — e4 — Aff — program — and — the 

curriculum for the intern s hip \\\\\ be presented to 
the Board by the preceptor during the personal 
interview as required. 

(b) The preoeptor will submit to the Board prior 
te — or within — the — fest — week — of internship — an 
indi\'idualized curriculum for the AIT which will 
pro\'ido the trainee v>'ith on the job experience in 
the nine subject areas outlined in Section .0700 of 
these Rules. 

Statutory Authority G.S. 90-278: 90-285. 

.0512 PRECEPTOR'S REPORTS 

(a) The preceptor shall s ubmit to the Board a 
training progre s s report for the AIT at the end of 
each month The preceptor shall make comments on 
the AIT's weekly 'monthly report regarding the 
progress of his/her training . 

(b) At the end of the approved AIT program, 
the preceptor will submit a report and an e\alua- 
tion of the AIT on forms provided by the Board. 
These forms are to be submitted to the Board 
within teft K) days of completion of the AIT 



program. The forms will require the name of the 
AIT. the place of training, an evaluation of the 
AIT's abilities, and other information that the 
Board requests. The preceptor will sign the forms, 
(c) The reports will be filed in the AIT's file in 
the Board's office and will become a permanent 
record in the individual's file. 

Statutory Authority G.S. 90-278; 90-285. 

.0514 CHANGE OF STATUS AXD 
DISCONTLNXANCE 

(a) If the AIT changes preceptors, transfers to a 
different preceptor or discontinues the training, he 
must notify the Board prior to making this change. 
If the AIT desires to change preceptors, he/she 
must submit a Notice of Change of Status and/or 
Discontinuance form provided by the Board. Prior 
to changing preceptors, the AIT must notify' the 
Board and the Board Chairman may grant such 
requests subject to a appro\'al at the next regularly 
scheduled board meeting. 

Cb) If the AIT desires to discontinue his/her 
internship, the Notice of Change of Status and/or 
Discontinuance form must be submitted within 10 
days of discontinuance before any accumulated 
training time may be considered should the AIT 
elect to re-enter his/her internship program at a 
future date. 

(c) <%) The form requires the name of the AIT 
and preceptor, the change requested, the effective 
date, reasons for the change, and any other infor- 
mation that the Board requests. Either the AIT or 
the preceptor must sign the form. 

Statutory Authority G.S. 90-278; 90-285. 

.0517 AIT TLME ON THE JOB 

(a) Tlie AIT shall serve an internship recom- 
mended by the preceptor and approved by the 
Board with a minimum of 40 hours per week. The 
minimum AIT program is 12 weeks, which may 
not be reduced except as stated in G.S. 90-278(1 )d 
and Rule .0520 of this Section. 

(b) An internship which has been discontinued 
by a period of militan,' service shall be allowed to 
be completed uithin a year after that serN'ice. 

(c) An internship which has been discontinued 
for any purpose other than military' service cannot 
be completed if the absence exceeds one year from 
the date of discontinuance. 

(d) Only one discontinuance is allowed. 

Statutory- .Authority' G.S. 90-278; 90-285. 



349 



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FRO FUSED RULES 



.0519 ADMINISTRATOR-IN-TRAINING 
PROGRAM 

(a) The requirement for serving a s an AIT docs 
not apply to an applicant who: 

f-H has a baccalaureate or ma s ters degree in 

nur s ing home admini s tration or a relat 
ed health admini s tration field from an 
accredited institution; and 

(3^ as part of hi s educational experience he 

completed at least a 12 week approved 
AIT — internship — m — a — North — Carolina 
nursing home under the supervision of 
a preceptor. 
(a) fb) The preceptor will evaluate and deter 
mine recommend to the Board the length of the 
internship AIT program required to teach the core 
of knowledge as outlined in Section .0700 of these 
Rules before accepting the AIT to train in a facility 
approved by the Board subject to the following 
provisions: 

( 1) the program of internship will be pre 
scnted to the Board by the preceptor 
and AIT during the oral interview a s 
required under Rule .0509(a) of this 
Section; in determining the length of 
the AIT program, the preceptor shall 
consider the strengths and weaknesses 
of the AIT applicant as it relates to 
his/her education and past supervisory 
experience. (An inventory sheet will be 
provided to help the preceptor deter- 
mine the knowledge of the AIT appli- 
cant.); 

(2) all AIT's shall serve a minimum of 12 
week s intern s hip, plu s any additional 
week s a s determined by the preceptor 
and approved by the Board except as 
otherwi s e allowed under Rule .0520 of 
thi s Section; and the AIT program will 
be presented to the Board by the pre- 
ceptor and the AIT during the personal 
interview as required under Rule 
■0502(e) of this Section; and 

(3) in determining the AIT program, the 
preceptor s hall con s ider the strengths 
and weakne ss e s of the AIT applicant as 
tt — relate s — ie — his education — etrt4 — past 
s upervi s ory experience. — (An inventory 
s heet — wi+1 — be — provided — te — help — tlw 
preceptor det e rmine the length of the 
AIT program.) except as otherwise 
allowed under Rule .0520 of this 
Section, all AITs shall serve a 
minimum of X2 weeks in the AIT 
program, plus any additional weeks as 



determined by the Board, 
determining whether to 



In 



require 

additional weeks in addition to the 12 
week minimum, the Board shall 
consider the recommendation of the 
preceptor, and the Board's independent 
consideration of the AIT applicant's 
education, training and experience 
relevant to operating a health care 
facility. 

(b) An AIT applicant who is working toward a 
baccalaureate or masters degree jn nursing home 
administration or a related health care 
administration field shall serve a minimum of 12 
weeks in the AIT program as part of his/her 
educational curriculum in a North Carolina 
licensed nursing home under the supervision of an 
approved preceptor. 

(c) At the completion of the approved AIT 
program internship and upon successfully passing 
the examinations as required by the Board, the 
AIT will be issued a provi s ional license upon the 
recommendation of the preceptor . 

(d) The provisional license will be valid for up 
to one year, during v»'hich time the AIT will serve 
a facility as administrator or will s erve a s a ss i s tant 
administrator with comparable re s pon s ibilitie s in a 
nur s ing facility having a minimum of 100 or more 
nur s ing bed s . All persons who hold a valid 
provisional license or who have completed the 
requirements for a provisional license as of the 
amended effective date of this Rule shall be issued 
a full license upon submission to the Board their 
provisional license or payment of the licensing fee 
if applicable. 

(c) The preceptor or a qualified licensed nursing 
home administrator will — continue to — serve as 
preceptor during the provi s ional license period and 
will monitor the AIT' s monthly report s to the 
Board. 

(f) After — the — provi s ional — licen s e — period — is 

completed — and — ati — requirement s — have — been 
satisfied: 

f4-) the preceptor or qualified admini s trator 

must file a final report recommending 
and certifying to the Board that the AIT 
ts — a — qualified — candidate — for — fttH 
licen s ure; 

f33 the owner(s) of the facility or facilitie s 

in which the AIT served his/her one 

year provisional period as an 

administrator &f an assistant 

administrator — mu s t — ftle — a — report 
ccrtif^'ing that the facility or facilitie s 
operated — by — the — ATF — during — the 



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350 



PROPOSED RULES 



provisional period were operated in a 
professional — aftd — efficient — manner 
without significant violations of local, 
state and federal rules and regulations 
for which the AIT may rea s onably be 
held responsible; 

0j records — of the — Division — of Facility 

Service s — mu s t — s how — that during — the 
provisional — period — the — facility — &f 
facilities — served — by — the — AIT had — h© 
significant violations of local, state and 
federal rule s and regulation s for which 
the — ATT — may — reasonably — be — held 
r cs pHjn s ible; 

f4) the Board will i ss ue a full nursing home 

admini s trator's license to the AIT. 

Statuton- Authoriry G.S. 90-278; 90-285. 

SECTION .0600 - EXAMINATION 

.0603 EXAMINATION 

(a) There shall be a charge of one hundred 
seventy-five dollars ($175.00) one hundred fifty 
dollars ($150.00) to take the national examination 
and sixty dollars ($60.00) to take the state 
examination. 

(b) If the applicant does not pass the 
examination, no refund will be made. 

(c) The applicant will be required to pay the 
appropriate fee each time he takes the examination. 

(d) Upon the third failure of any examination 
required by the Board, the AIT and the preceptor 
must submit to the Board a program to strengthen 
the candidate's weakness as demonstrated by the 
previous test results. Upon approval by the Board 
of the program and completion thereof by the 
candidate, he shall be allowed to take the 
examinations a fourth time . 

Statuton- Authority G.S. 90-278: 90-280: 90-284: 
90-285. 

SECTION .0700 - SUBJECTS FOR 
EXAMINATION 

.0701 SUBJECT AREAS 

The written or oral examination shall include, 
but need not be limited to, the following subjects: 

(1) applicable — standards — of environmental 

health and s afety Resident Care 

Management , 

(2) local — health — and — safety — regulation s 
Personnel Management . 

( -^ ) genera l administration Financial 



Management , 

(4) psychology of patient care Environmental 
Management . 

(5) principles of medical — eafe Regulatory 
Management . 

(6) per s onal and s ocial care. Organizational 
Management. 

f7^ therapeutic — and — supportive — eeie — and 

s ervice s in long term care. 
{%) departmental organization ttfrA 

management. 
f'^^ community interrelation s hip s . 

Statutory Authority G.S. 90-278: 90-285. 

.0702 GUIDELINES FOR RULE .0701(1) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(1) of 
this Section, resident care management applicable 
standards of environmental health and safety : 

( 1 ) hygiene and s anitation Nursing services . 

(2) communicable disea s e s Social services . 

(3) management of isolation Food services , 

(4) the — total — environment — (noise. — color, 
orientation. — s timulation. — temperature, 

lighting. atf circulation) Physician 

services . 

(5) elements of accident prevention Social 
and therapeutic recreational activities , 

(6) s pecial — architectural — needs — of nursing 
home patients Medical records , 

(7) drug handling and control Pharmaceutical 
services , 

(8) s afety factors m oxygen usage 

Rehabilitation services . 

Statutory Authority G.S. 90-278; 90-285. 

.0703 GUIDELINES FOR RULE .0701(2) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(5 2) 
of this Section, general admini s tration personnel 
management : 

( 1 ) in s titutional admini s tration: Maintaining 
positive atmosphere. 

(2) planning. organizing. directing. 

controlling, s taffing, coordinating, and 
budgeting: E\aluation procedures. 

(3) human relations: Recruitment of staff, 
{&) m a n a g e m e n t / e m p 1 o y e e 

interrelationships, 

fb^ employee/employee interrelationships, 

(e) employee/patient interrelationships, 

fd^ employee/family interrelation s hips: 

(4) training — ef — personne l : Interviewing 



351 



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PROPOSED RULES 



candidates, 

fa) training — trf — employees — te — become 

scnsiti\'e to patient need s . 
fb) on going in service training/education. 

(5) Selecting future employees. 

(6) Providing staff development and training 
activities, 

(1) Personnel policies. 
(8) Health and safety. 

Statutory Authority G.S. 90-278: 90-285. 

.0704 GUIDELINES FOR RULE .0701(3) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(4 3) 
of this Section, psychology of patient care financial 
management : 

( 1 ) anxiety; Budgeting. 

(2) depression; Financial planning. 

(3) drug s , alcohol, and their eff e ct; Asset 
management. 

(4) motivation; Accounting. 
i%) separation reaction. 

Statutory Authority G.S. 90-278: 90-285. 

.0705 GUIDELINES FOR RULE .0701(4) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(5 4) 
of this Section, principles of medical care environ- 
mental management : 

anatomy and phy s iology. Maintain and 
improve buildings, grounds and equip- 
ment. 

psychology. Provide a clean, attractive, 
homelike environment for residents, staff 



(I) 



(2) 



and visitors. 



(3) 



(4) 



{^ 



disease — recognition. Safety program 
which would ensure the health, welfare 
and safety of residents, staff and visitors. 
di s ea s e proce ss e s . Have fire, disaster and 
emergency programs to protect the safety 
and welfare of residents, staff and prop- 
erty. 
nutrition. 



{^ 



agmg processe s . 



f?) medical terminology. 

{%) materia medica (drug reactions), 

(9) social s ervices. 

f+0) utilization review. 



f44^ profe ss ional and medical ethic s . 



Statutory Authority G.S. 90-278: 90-285. 



.0706 GUIDELINES FOR RULE .0701(5) 



The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(6 5) 
of this Section, personal and s ocial care regulatory 
management : 

(1 ) resident and patient care planning; Poli- 
cies and procedures in place to maintain 
compliance with laws and regulations. 

(2) activity programming: Policies and pro- 
cedures in place to maintain compliance 
with directives of governing entities (ie. 
Board of Directors). 

patient participation. 






recreation; 



0) interrelation s hips between patient and: 

tft) patient. 

ibj staff (staff sensitivity to patient needs a s 

a therapeutic function). 
fe) family and friend s . 

administrator. 



(^ 

fe) management — (self government/patient 

council); 

i4j rehabilitation and restorative activitie s : 

fa) training in activitie s of daily living. 

fb) technique s of group therapy; 

iS^ interdisciplinary interpretation of patient 

care to: 
fft) the patient. 



ihh 



th e s taff. 



fe) the family. 

Statutory Authority G.S. 90-278: 90-285. 

.0707 GUIDELINES FOR RULE .0701(6) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701(7 6) 
of this Section, therapeutic and s upportive care and 
services in long term care organizational manage- 
ment : 

( 1 ) individual care planning a s it embraces 
all therapeutic care and s upportive scrvic 
e*7 Measure outcomes of aM programs, 
policies, and procedures of facility to 
ensure effectiveness, 

(2) meaningful observation s of patient bchav 
ior a s related to total patient care; Pro- 
cess for communicating with residents, 
families, staff, volunteers and governing 
entities. 

(3^ interdisciplinary evaluation and revi s ion 

of patient care plans and procedures; 

f4) unique a s pect s and requirement s of geri 

atric patient care; 

(#) profe ss ional s taff interrelationships with 

patient' s phy s ician; 

i4y) professional ethics and conduct; 



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352 



PROPOSED RULES 



f?3 rehabilitative and romotivational role of 

individual — therapeutic — and — supportive 

services; 
fS) psychological. — social. — and — religious 

needs, in addition to physical neods of 

patient: 
f^^ needs for dental services. 



fe^ 



service agencies. 



{d) government agencies; 

{ij third party payment organization s ; 

f+) comprehensive health planning agencies; 

f§-) volunteers and auxiliaries. 

Sunuron- Authority G.S. 90-278; 90-285. 



Statutory Authority G.S. 90-278; 90-285. 



SECTION .0900 - LICENSES 



.0708 GUIDELINES FOR RLT.E .0701(8) 

The following shall be considered as guidelines 
with respect to the subject area of Rule .0701 (8) of 
thts — Section. — departmental — organization — and 
management: 

fH criteria for coordinating e s tabli s hment of 

departmental and unit objectives; 

(3^ reporting and accountability of individual 

departments to administrator: 

eriteria — fef — departmental — evaluation 



(*H 



(nursing. 



food 



service. 



-* 



erapeutic 



ser\'ices. maintenance, housekeeping); 



f4) technique s ef providing adequate 

professional, therapeutic, supportive, and 
administrativ'e serx'ices; 



f^^ knowledge, function, and relations 

the following departments: 
nur s ing. 



hip of 



housekeeping. 



dietary, 
laundpv'. 



pharmaceutical services, 
social s ervices, 
business office. 



recreation, 
medical records, 
admitting. 



phy s ica l therapy, 
occupational therapy, 
medical and dental services, 
laboratories. 



ffH- 
^^ 

fftf- 
feH- 



Statutory- Authority G.S. 90-278; 90-285. 

.0709 GUIDELINES FOR RULE .0701(9) 

The following shall be considered a s guidelines 
with respect to the subject area of Rule .0701(9) of 
thi s Section, community interrelation s hip s : 

t+-) community medical care, rehabilitative, 

and social services resources; 

f5^ other community resources: 

{ttj religious in s titution s . 

fb) schools. 



X ray. 
maintenanc 



.0901 ISSUANCE 

Every person who is issued a valid license by the 
Board shall immediately upon issuance thereof be 
deemed registered with the Board and be issued a 
certificate of registration. A licensee must notify 
the Board in uriting \».ithin 15 days of any change 
of address (home and work). 

Statutory Authority G.S. 90-278; 90-279; 90-285. 

.0903 RENTVVAL 

(a) The licensee shall biennially apply to the 
Board for a new certificate of registration to be 
displayed v.ith the permanent license and report 
any facts requested by the Board on forms 
provided by the Board. 

(b) The form will include the name of the 
licensee, address, the place of the applicant's 
practice, continuing education credits, and any 
other information which the Board may feel it 
needs to act upon the application. 

(c) As a courtesy, the Board will send renewal 
notices to the last address on record; it is the 
individual licensee's responsibility to keep this 
information current with the Board office. 

Statutory Authority G.S. 90-285; 90-286. 

.0912 RECIPROCiri7ENT>ORSEMENT 

(a) The Board may issue a provisional license 
for one year, without the national examination , to 
a nursing home administrator who holds a nursing 
home administrator license issued by the proper 
authorities of any other state, upon payment of the 
current licensing fee. successful completion of the 
state examination, and submission of evidence 
satisfactory to the Board as to the following: 

such applicant for licensure must have 
personal qualifications^^ afld education^ 
training or experience at least 
substantially equivalent to those 
required in this state; 
such applicant must be licensed in 
another state that gives similar 
recognition and reciprocity/endorsement 



(1) 



(2) 



353 



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NORTH CAROLINA REGISTER 



May 14, 1993 



PROPOSED RULES 



to nursing home administrator licenses 
of this state; and 
(3) such applicant for license by 
reciprocity/endorsement holds a valid 
license as a nursing home administrator 
in the state from which he is 
transferring^ and ha s — never had an 
admini s trator's — licen s e — revoked — f&f 
cau s e; — and — ean — certify — that — he — has 
worked full time a s a licensed nur s ing 
home administrator for at lea s t one year 
within the two year period immediately 

preceding th-e application ^ 

reciprocity /endorsement. 
(b) An applicant for reciprocity/endorsement 
should s ubmit a completed application, background 
resume, certified college tran3cript(s). three letters 
of reference, and a seventy five dollar ($75.00) 
application fee, and appear before the Board for an 

oral interview. An applicant for 

reciprocity/endorsement shall submit a completed 
application, background resume, certified college 
transcript(s), three reference forms (one of which 
must be from a previous employer) from 
individuals who shall certify to the good moral 
character of the applicant as defined in Rule .0303 
of this Chapter, licensing questionnaire(s) from 
every state where the applicant has held a license, 
a seventy-five dollar ($75.00) application fee, and 
appear before the Board for a personal interview. 
fe) — Once a provisional license has been issued, 
the licen s ee i s to s ubmit to the Board quarterly 
reports, on a form to be obtained from the Board, 
until a full license is issued. 

{4j After the — provisional — license — period — is 

completed — and — aH — requirements — have — been 
s atisfied: 

ft) the owner( s ) of the facility or facilities 

in which the reciprocity/endor s ement 
applicant ha s served his/her one year 
provisional period a s an administrator 
or assistant administrator must file a 
report certifying that the facility or 
facilitie s — operated — by — the — applicant 
during — the — provi s ional — period — were 
operated in a professional and efficient 
manner without significant violations of 
local, — s tate — and — federal — rule s — and 

regulations fe-F which t-h-e 

reciprocity/endor s ement applicant may 
rea s onably be held responsible; 

i^ records — of the — Division — ef — Facility 

Service s — must — s how that during the 
provisional period the facility or facili 
tics served by the applicant had no 



significant violations of local, state and 
federal rules and regulations for which 
the — reciprocity/endorsement — applicant 
may reasonably be held responsible; 

0^ the Board will then i ss ue a full nursing 

home — administrator's — licen s e — ie — i^ 
reciprocity/endorsement applicant. 

(c) {e) The Board shall have the power, after 
due notice and an opportunity to be heard at a 
hearing, to revoke or suspend the nursing home 
administrator license issued to any person under 
this Rule upon evidence satisfactory to the Board 
that the duly constituted authorities of any other 
state have lawfully revoked or suspended the 
nursing home administrator license issued to such 
person by such state. 

(d) All persons who hold a valid provisional 
license or who have completed the requirements 
for a provisional license as of the amended effec- 
tive date of this Rule shall be issued a full license 
upon submission to the Board their provisional 
license or payment of the licensing fee is applica- 
ble. 

Statutory Authority G.S. 90-280; 90-285: 90-287. 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Pharmacy intends to amend rules cited as 21 
NCAC 46 .1317, .1503, .1601, .1802. .2201, 
.2501; and adopt rules cited as 21 NCAC 46 
.1605, .1809, .3001. 

1 he proposed effective date of this action is 
September 1, 1993. 

1 he public hearing will be conducted at 9:30 
a.m. on June 21 , 1993 at the Holiday Inn, Four 
Seasons, Greensboro, North Carolina. 

IXeason for Proposed Action: 
21 NCAC 46 .1317 - To allow a pharmacy intern 
working under a pharnmcist preceptor or supervis- 
ing pharmacist to perform all acts constituting the 
practice of pharmacy. 

21 NCAC 46 .1503 - To prohibit a pharmacist 
who has been found in violation or pled guilty or 
no contest or been found guilty by a court of 
competent jurisdiction of a violation of laws, rules, 
or regulations governing the practice of pharmacy 



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354 



PROPOSED RULES 



and the distribution of drugs from serving as a 
preceptor without approval hy the Board. 
21 NCAC 46 .1601 - To require all pharmacists- 
managers or their staff to complete a self inspec- 
tion form when applying fi)r renewal of phartnacy 
permits. 

21 NCAC 46 .1605 - To authorize the Board to 
charge persons requesting verification for rein- 
statement of a pharmacy license or permit a fee of 
$15. 00 per verification. 

21 NCAC 46 .1802 - To allow a pharmacist to 
dispense drug quantities in excess of the face 
amount of a prescription for a non-controlled 
substance, up to the total amount authorized. 
21 NCAC 46 .1809 - To permit a pharmacist, who 
receives a request for a prescription refill and is 
unable to obtain readily refill authorization from 
the prescriber. to dispense a one-time emergency 
refill of up to a 72-hour supply of a prescribed 
medication , provided certain conditions are met. 
21 NCAC 46 .2201 - To define contact programs 
and to require the content of continuing education 
courses to have the purpose of increasing the 
participant 's professional competence and profi- 
ciency as a pharmacist. 

21 NCAC 46 .2501 - To allow the Board to ap- 
prove an alternative supervision arrangement of 
unlicensed personnel if the public health, safety, 
and welfare will not be adversely affected. 
21 NCAC 46 .3001 - To provide a process by 
which permit holders can properly dispose of out- 
dated, improperly labeled, adulterated, damaged 
or unwanted drugs or drug containers. 

i^omment Procedures: Persons wishing to present 
oral data, views or arguments on a proposed rule 
or rule change, may file a notice with the Board at 
least 10 days prior to the public hearing at which 
the person wishes to speak. Conmients .should be 
limited to 10 minutes. The Board's address is 
P.O. Bo.x 459. Carrboro. NC 27510. Any person 
nuiy file written submission of conmients or argu- 
ment at any time up to and including June 21, 
1993. 

CHAPTER 46 - BOARD OF PHARMACY 

SECTION .1300 - GE\ER.\L DEFINITIONS 

.1317 DEFINITIONS 

The definitions of various terms used in these 
rules are found in Article 4A of Chapter 90 of the 
General Statutes, or are as follows: 

(1) Appro\ed School or College of Pharma- 



cy. A school or college of pharmacy 
accredited by the American Council on 
Pharmaceutical Education, or a foreign 
school with a professional pharmacy 
degree program of at least five years 
approved by the Board. 

(2) Auxiliary Drug Inventory. A secure, 
segregated, supplementary source for 
drugs to be used solely for the purpose of 
providing adequate drug availability when 
the pharmacy is closed or the pharmacist 
is unavailable. 

(3) Board. The North Carolina Board of 
Pharmacy. 

(4) Emergency Drugs. Those drugs whose 
prompt use and immediate availability are 
generally regarded by physicians as 
essential in the proper treatment of un- 
foreseen adverse changes in a patient's 
health or well-being. 

(5) Executive Director. The Secretary-Trea- 
surer and Executive Director of the 
Board. 

(6) Graduate of an Approved School or 
College of Pharmacy. A person who has 
received an undergraduate professional 
degree in pharmacy from an approved 
school or college of pharmacy, or a 
person who has graduated from a foreign 
professional school of pharmacy and has 
successfully completed the Foreign Phar- 
macy Graduate Equivalency Examination 
offered by the National Association of 
Boards of Pharmacy and the Test of 
English as a Foreign Language. 

(7) Indulgence in the Use of Drugs. The use 
of narcotic drugs or other drugs affecting 
the central nervous system or the use of 
intoxicating beverages to an extent as to 
deprive the user of reasonable self-con- 
trol or the ability to exercise such judg- 
ment as might reasonably be expected of 
an average prudent person. 

(8) Institutional Pharmacy. A pharmacy 
maintained in a hospital, clinic, nursing 
home, rest home, sanitorium. non-federal 
governmental institution, industrial health 
facility, or other like health service under 
the supervision of a pharmacist; or the 
central area in a hospital, clinic, or other 
health care facility where drugs are pro- 
cured, stored, processed, or issued, or 
where pharmaceutical services are per- 
formed. 

(9) Limited Service Pharmacy Permit. A 



355 



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May 14, 1993 



PROPOSED RULES 



pharmacy permit issued by the Board to 
an applicant that wishes to render in an 
institutional setting pharmaceutical servic- 
es not limited to scope and kind but to 
time and conditions under which such 
services are rendered. 

(10) Pharmacist. Any person within the defini- 
tion set forth in G.S. 90-85. 3(p), includ- 
ing any druggist. 

(11) Pharmacist-Manager. The person who 
accepts responsibility for the operation of 
a pharmacy in conformance with all 
statutes and regulations pertinent to the 
practice of pharmacy and distribution of 
drugs by signing the permit application, 
its renewal or addenda thereto. 

(12) Pharmacy. Any place within the defini- 
tion set forth in G.S. 90-85. 3(g), includ- 
ing any apothecary or drugstore. 

- (13) Pharmacy Intern. Any person who is duly 
registered with the Board under the in- 
ternship program of the Board to acquire 
pharmacy experience^ -. — The term doc s 
not include but not including those stu- 
dents enrolled in approved academic 
internship programs. A pharmacy intern 
working under a pharmacist preceptor or 
supervising pharmacist may perform all 
acts constituting the practice of pharma- 

(14) President. The President of the Board. 

(15) Two Years College Work. Attendance at 
a college accredited by a recognized 
accreditation agency for two academic 
years of not less than eight and one-half 
months each and the completion of work 
for credit leading to a baccalaureate 
degree or its equivalent and that would 
permit the student to advance to the next 
class. 

(16) Undergraduate Professional Degree in 
Pharmacy. A B.S. or Pharm. D. degree. 

(17) Vice-President. The Vice-President of the 
Board. 

Statutory Authority G.S. 90-85.3; 90-85.6; 90- 
85. 8; 90-85. 13; 90-85. 14; 90-85. 15; 90-85. 21; 90- 
85. 38; 90-85. 40. 

SECTION .1500 - ADMISSION 
REQUIREMENTS: EXAMINATIONS 

.1503 EXPERIENCE IN PHARMACY 

(a) An applicant for license must show that he 
has received 1500 hours of practical experience 



under the supervision of a licensed pharmacist 
which has been acquired after the satisfactory 
completion of two years of college work. At least 
1000 hours of this experience must be acquired in 
a community or hospital pharmacy or other place 
approved by the Board in the manner prescribed in 
(b) of this Rule. No period of experience of less 
than two consecutive weeks of not less than 30 
hours per week, or more than 50 hours per week 
of actual hours worked with a maximum of ten 
hours per day, will be credited toward this require- 
ment. Hours acquired concurrent with pharmacy 
college attendance with no period of experience of 
less than two consecutive weeks of not less than 10 
hours per week or more than 20 hours per week of 
actual hours worked will be credited toward this 
requirement. Experience obtained in clinical 
programs through schools, or in Board approved 
demonstration projects concurrent with pharmacy 
school attendance, is acceptable only for actual 
hours certified by the school up to a maximum of 
50 hours per week. Any experience obtained in 
government, the pharmaceutical industry, or other 
non-traditional pharmacy-related locations while 
under the preceptorship of a licensed pharmacist is 
acceptable up to a maximum of 500 hours. Non- 
traditional internship experience would be any 
pharmacy related practical experience that is not 
primarily associated with pharmaceutical care 
activities in community and hospital pharmacy 
practice. 

(b) All practical pharmacy experience to be 
acceptable must be acquired under the general 
conditions approved by the Board as follows: 

( 1 ) All practical pharmacy experience must 
be validated through registration in the 
internship program administered by the 
Board. 

(2) Persons working under the supervision 
of registered pharmacists and expecting 
to qualify for the registered pharmacist 
examination must notify the Board 
within five days of the beginning and 
the ending of such employment. 

(3) The Board shall not allow credit for 
claims of practical experience required 
under the pharmacy laws, unless such 
claims can be corroborated by records 
on file in the Board's office showing 
the beginning and ending of the practi- 
cal experience claimed as supplied by 
the applicant during this training peri- 
od. 

(4) Practical experience shall be credited 
only when it has been obtained in a 



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356 



PROPOSED RULES 



location holding a pharmacy permit, or 
a location approved hy the Board for 
that purpose. 

(c) The pharmacist intern, or student, and the 
pharmacist preceptor, or supervising pharmacist, 
shall at all times comply with the Board's rules 
and the laws governing the practice of pharmacy 
and the distribution of drugs. Failure of the 
pharmacist intern to do so is grounds to disqualify 
the period of experience from counting toward the 
minimum requirements. A pharmacist preceptor 
who causes or permits a pharmacist intern to 
violate the Board's rules or the laws governing the 
practice of pharmacy and the distribution of drugs 
forfeits his right to super\ise such experience for 
a period of time determined by the Board. A 
pharmacist who has been found In violation or pled 
guilty or no contest or been found guilty by a 
court of competent jurisdiction of a violation of 
laws, rules, or regulations governing the practice 
of pharmacy and the distribution of drugs cannot 
serve as a preceptor without approval by the 
Board. 

(d) The Board may accept training in pharmacy 
gained in another state pursuant to internship 
registration in this or another state if the Board is 
satisfied that such training is equivalent. 

Statutory Authority G.S. 90-85.6; 90-85.14; 90- 
85.15; 90-85.38. 

SECTION .1600 - LICENSES AND PERMITS 

.1601 PHARMACY PERMITS 

(a) Applications for pharmacy permits, whether 
original or renewal, shall be made upon forms 
provided by the Board. The Board shall not issue 
any original or annual renewal pharmacy permit 
until the Board is satisfied that: 

( 1 ) Adequate qualified personnel has been 
secured by the management of the store 
to properly render pharmaceutical 
service in the manner prescribed by 
law, 

(2) Such personnel shall be maintained 
during that period for which the permit 
is issued. 

(3) Any and all unlicensed clerks have been 
instructed that they may render pharma- 
ceutical service only as an aid to and 
under the immediate supervision of a 
registered pharmacist. 

(4) The following minimum technical 
equipment is maintained: 

(A) Graduates. Capable of accurately 



measuring volumes from 1 ml to at 
least 500 ml; 

(B) Mortars and pestles; 
(i) one— glass; 

(ii) one--"Wedgwood"; 

(C) Stirring Rods. Two— assorted sizes, 
glass or rubber; 

(D) Ointment slab or suitable substitute; 

(E) Class A prescription balances and 
appropriate weights, suitable for all 
required weighings, at least one of 
which must be sensitive to six mg; 

(F) Suitable facilities for recording and 
filing prescriptions as required by 
G.S. 90-85.26; 

(G) Spatulas; 

(i) stainless steel, at least three 
assorted sizes; 

(ii) non-metallic, one of suitable size; 
(H) Useable Supplies. Adequate quantity 
of each and equipped with safety 
closures where required r 

(i) prescription bottles, 1 to 32 fluid 
ounces; 

(ii) dropper bottles, 1/2 to 2 fluid 
ounces; 

(iii) assorted pill and tablet containers; 

(iv) empty capsules. No. 00 to No. 3; 

(V) powder papers; 

(vi) ointment jars, assorted; 

(vii) prescription labels; 

(viii) all appropriate auxiliary labels; 
(I) Suitable heating apparatus; 
(J) Refrigerator; 
(K) Reference library, as follows: 

(i) the latest edition of the United 
States Pharmacopeia (USP) and 
National Formulary and 
supplements thereto or a standard 
commentary thereon; 

(ii) copy of the pharmacy laws of 
North Carolina, including the 
North Carolina Controlled 
Substances Act and the rules 
adopted pursuant thereto, and the 
North Carolina Pharmacy Practice 
Act and the rules of the Board; 

(iii) a copy of the Federal Controlled 
Substances Act and the 
regulations adopted pursuant 
thereto; 

(iv) a Schedule V controlled 
substances register (where these 
preparations are sold other than 
on prescriptions); 



357 



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PROPOSED RULES 



(v) a medical dictionary; 

(vi) current editions of generally 

accepted reference books on the 

following subjects: 

(I) drug interactions; 

(II) clinical pharmacology, and 

(III) USP Dispensing Information 
or its equivalent, 

(IV) if IV admixture services are 
provided, a reference on 
Parenteral Incompatibilities. 

(5) The pharmacy is equipped with proper 
sanitary appliances including lavatory 
facilities with hot and cold running 
water, is adequately lighted, and is kept 
in a clean, orderly, and sanitary 
condition. 

(6) All prescription medications are labeled 
in accordance with G.S. 106-134 and 
G.S. 106-134.1. 

(b) In addition to the requirements for issuance 
and renewal of a pharmacy permit imposed by a 
statute and by other rules of the Board, a permit 
shall not be issued or renewed to any person to 
operate a pharmacy wherein the prescriptions of 
medical practitioners are compounded or dispensed 
and distributed when such distribution is effected 
by mail and the practitioner-pharmacist-patient 
relationship does not exist, until the Board is 
satisfied that: 

(1) The pharmacy maintains records of 
prescriptions compounded or dispensed 
and distributed in manner that is readily 
retrievable; 

(2) During the pharmacy's regular hours of 
operation but not less than six days per 
week, for a minimum of forty hours per 
week, a toll-free telephone service is 
provided to facilitate communication 
between patients and a pharmacist at 
the pharmacy who has access to the 
patient's records. This toll-free number 
must be disclosed on the label affixed 
to each container of dispensed drugs; 

(3) The pharmacy complies with all lawful 
orders, directions, and requests for 
information from the Boards of 
pharmacy of all states in which it is 
licensed and all states into which it 
distributes prescription drugs; 

(4) The pharmacy complies with all USP 
and FDA requirements regarding the 
storage, packaging, and shipping of 
prescription medications. 

The pharmacist-manager and all other pharmacists 



employed in the pharmacies permitted pursuant to 
this Paragraph shall be subject to all Federal and 
State statutes and regulations concerning the 
dispensing of prescription medications including, 
but not limited to, 21 NCAC 46 .1801 and .1805 
and 21 CFR 1306.01, 1306.05, and 1306.21. 
Provided, however, that this Rule shall not apply 
to the occasional mailing of prescription drugs to 
bona fide customers of any pharmacy when the 
practitioner-pharmacist-patient relationship is 
present. 

(c) The Board shall not issue an original or 
renewal permit to any person to operate a 
drugstore or pharmacy as a department in or a part 
of any other business serving the general public 
(except hospitals, nursing homes, and similar 
institutions subject to the provisions of .0300 of 
this Chapter) unless such pharmacy facility: 

( 1 ) is physically separated from such other 
business; 

(2) is separately identified to the public 
both as to name and any advertising; 

(3) completes all transactions relative to 
such pharmacy within the registered 
facility; and 

(4) meets the same requirements for 
registration as all other pharmacies. 

(d) Permits to operate pharmacies, whether 
original or renewal, shall be issued to the 
pharmacist-manager of such pharmacy pursuant to 
a joint application of the owner and pharmacist- 
manager for the conduct and management of said 
pharmacy. The issuance of said permit shall not 
be complete and the permit shall not be valid until 
it has been countersigned by the pharmacist- 
manager as represented in the application. The 
permit so issued is valid only so long as the 
pharmacist-manager to whom it was issued 
assumes the duties and responsibilities of 
pharmacist-manager. Permits may be reissued at 
any time to a successor pharmacist-manager 
pursuant to the proper amendment of the 
application for the permit. 

(e) The Board shall provide a self-inspection 
form on the back of the annual pharmacy permit 
renewal application form. The self-inspection 
form shall be completed by the pharmacist- 
manager or by pharmacist staff responsible to the 
pharmacist-manager and shall be returned to the 
Board office. The self-inspection form shall 
contain a certification that the self-inspection has 
been completed and shall contain space to indicate 
when any deficiencies will be corrected. Making 



false representations in connection with the self- 
inspection shall be grounds for disciplinary action. 



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358 



PROPOSED RULES 



Statutory Authority G.S. 90-85.6: 90-85.21. 

.1605 CHARGE FOR VERIFICATION FOR 
REINSTATEMENT 

The Board shall charge persons requesting 
verification for reinstatement of a pharmacy license 
or permit a fee of Fifteen dollars ($15.00) per 
verification. 

Statutory Authority G.S. 90-85.6; 90-85.17; 90- 
85.21: 150B-19(5)(e). 

SECTION .1800 - PRESCRIPTIONS 

.1802 PRESCRIPTION REFILLS 

(a) Authorization for prescription refills is 
presumed to be within the prescribed dosage or 
normal therapeutic use. Refilling prescriptions 
more frequently than the prescribed dosage would 
require, or refilling prescriptions in significant 
excess of normal therapeutic use, may be 
considered as negligence under G.S. 90- 
85.38(a)(9). 

(b) If deemed appropriate in the pharmacist's 
professional judgment, a patient may receive upon 
request drug quantities iji excess of the face 
amount of a prescription for a non-controlled 
substance, up to the total amount authorized. The 
pharmacist shall not dispense in excess of the face 
amount of a prescription for a controlled substance 
or psychotherapeutic drug without authorization 
from the prescriber. 

Statutory Authority G.S. 90-85.6; 90-85.32. 

.1809 EMERGENCY PRESCRIPTION 
REFILLS 

In the event a pharmacist receives a request for 
a prescription refill and the pharmacist is unable to 
obtain readily refill authorization from the 
prescriber. the pharmacist may dispense a one-time 
emergency refill of ug to a 72-hour supply of the 
prescribed medication, provided that: 
(1) The prescription js not for a Schedule 11 
controlled substance: 
The medication is essential to the 



i2i 



m 



(41 



maintenance of life or to the continuation 

of therapy m a chronic condition; 

In the pharmacist's professional 

judgment, the interruption of therapy 

might reasonably produce undesirable 

health consequences or may cause 

physical or mental discomfort; 

The dispensing pharmacist creates a 

written order containing all of the 



prescription information required by 
Section .2300 of these Rules and signs 
that order; 
(5) The dispensing pharmacist notifies the 
prescriber of the emergency dispensing 
within a reasonable time after such 
dispensing. 

Statutory Authority G.S. 90-85.6; 90-85.32. 

SECTION .2200 - CONTINUING 
EDUCATION 

.2201 HOURS: RECORDS: PROVIDERS: 

CORRESPONDENCE: RECIPROCrTY 

(a) As a condition of license renewal, each 
practicing pharmacist holding an active license 
shall report on renewal forms the hours of 
continuing education obtained during the preceding 
year. Annual accumulation of ten hours is 
considered satisfactory to meet the quantitative 
requirement of this Rule. 

(b) All records, reports of accredited hours and 
certificates of credit shall be kept at the 
pharmacist's regular place of practice for 
verification by inspectors during regular or other 
visits. The Board reserves the right to require 
submission of such documentation on a random 
basis. Pharmacists who do not practice regularly 
at one location shall produce such records within 
24 hours of a request from Board authorized 
personnel. All records of hours and certificates of 
credit shall be preserved for at least three years. 

(c) AH continuing education shall be obtained 
from a provider approved by the Board. Not more 
than 50 percent of the continuing education credits 
can be obtained through oorrospondonco. self study 
or other non contact program s in any calendar 
year. In order to receive credit, continuing 
education courses should have the purpose of 
increasing the participant's professional 
competence and proficiency as a pharmacist. At 
least five hours of the continuing education credits 
must be obtained through contact programs in any 
calendar year. Contact programs are those 
programs in which there is an opportunity for live 
two-way communication between the presenter and 
attendee. 

(d) Continuing education shall not serve as a 
barrier to reciprocity; however all licensees by 
reciprocity must observe the continuing education 
standards specified in (a), (b) and (c) of this Rule 
within the first renewal period after licensure in 
this state. 



359 



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PROPOSED RULES 



Statutory Authority G.S. 90-85.6; 90-85.17; 90- 
85.18. 

SECTION .2500 - MISCELLANEOUS 
PROVISIONS 

.2501 SUPERVISION 

\ft Except as provided herein, in order to 
properly exercise the supervision of unlicensed 
personnel required by these Rules, the responsible 
pharmacist must physically review the prescription 
order and the dispensed product before the product 
is delivered to the patient or person acting on the 
patient's behalf. If the public health, safety, and 
welfare will not be adversely affected, the Board 
may approve an alternative supervision 
arrangement under such terms and conditions as it 
deems appropriate. 

Statutory Authority G.S. 90-85.6; 90-85. 40(a). 

SECTION .3000 - DISPOSAL OF 
UNWANTED DRUGS 

.3001 PROCEDURE FOR DISPOSING OF 
DRUGS 

{a} M registrants under G.S. 90-85.21 shall 
develop and implement policies and procedures to 
insure that all out-dated, improperly labeled, 
adulterated, damaged or unwanted drugs or drug 
containers with worn, illegible or missing labels 
are destroyed or disposed of so as to render them 
unusable. 

(b) Any permit holder in possession of outdated, 
adulterated or unwanted drugs other than con- 
trolled substances may destroy such drugs by 
introduction to the sewer system, incineration at an 
Environmental Protection Agency-approved facility 
or by any other means approved by the Board 
which will assure protection against unauthorized 
possession or use. Destructions under this Para- 
graph taking place at the permit holder's premises 
shall be jointly witnessed by at least two licensed 
pharmacists and documented. Destructions under 
this Paragraph at an approved facility or by any 
other Board-approved means shall be witnessed 
and documented as set forth in Paragraph (c) of 
this Rule. 

(c) Any permit holder in possession of any 
controlled substance and desiring or required to 
dispose of such substance may File a written 
request on a form provided by the Board for 
authority and instructions to dispose of such 
substance. Not more than twice a year, destruc- 
tions under this Section may take place at the 



permit holder's premises and may be jointly 
witnessed by at least two licensed pharmacists 
approved by the Board. All destructions of con- 
trolled substances shall be documented and the 
document shall be retained by the permit holder 
for a period of at least three years. Copies of the 
document shall be sent to the Drug Enforcement 
Administration. 

Statutory Authority G.S. 90-85.6; 90-85.21. 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Examiners of 
Plumbing, Heating and Fire Sprinkler Contractors 
intends to amend rules cited as 21 NCAC 50 
.0106, .0306, .0402 - .0403, .0407, .0506, . 1006, 
.1101; and adopt rules cited as 21 NCAC 50 . 0310 
- .0311. .0412, .0510. 

1 he proposed effective date of this action is 
August 2, 1993. 

1 he public hearing will be conducted at 8:30 
a.m. on June 8, 1993 at the State Board of Exam- 
iners of Plumbing, Heating and Fire Sprinkler 
Contractors, 801 Hillsborough Street, Suite 403, 
Raleigh, NC 27603. 

IXeason for Proposed Action: 
21 NCAC 50 .0106 - To provide the current 
address and location of the Board's office. 
21 NCAC 50 .0306 - Rule contradicts amendment 
to G.S. 87-21 (e). 

21 NCAC 50 .0310 - To clarify the requirements 
of licensure by reciprocity. 

21 NCAC 50 .0311 - To provide a requirement 
that applicants for licensure provide proper identi- 
fication at the times of application and examina- 
tion. 

21 NCAC 50 .0402 - To clarify that permits must 
be obtained prior to the commencement of and the 
meaning of the statutory requirement of appropri- 
ate license in connection with submission of bids. 
21 NCAC 50 .0403 - To clarify that a licensee 
mny not contract beyond his license classification. 
21 NCAC 50 .0407 - To clarify the responsibility 
of corporations, partnerships and businesses 
licensed by reason of the qualification of an 
individual connected with the firm to comply with 
the provisions of Article 2, Chapter 87 of the 



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360 



PROPOSED RULES 



General Shiliites and lo the rule adopted hy the 
Board. 

21 NCAC 50 .0412 - To provide guidance as to 
the type of conduct for which the Board nuiy 
discipline a licensee. 

21 NCAC 50 .0506 - To revise and update the li.st 
of some of the activities which constitute minor 
repairs and alterations exempted from licensure. 
21 NCAC 50 .0510 - To clarifi the relationship of 
compensation to the determination of licensure 
re(/uirements. 

21 NCAC 50 .1006 - To list and explain certain 
informal procedures in use hy the Board in con- 
nection with administrative proceedins^s. 
21 NCAC 50 .1101 - To recognize . recodify and 
establish the fees for examination and for issuance 
of license of various t}'pes. 

L^omment Procedures: Persons wishing to present 
oral data, views or art^ument on a proposed rule 
or rule change nuiy file a notice with the Board at 
least 10 days prior to the public hearinfz at which 
the person wishes to speak. Comments should be 
limited to 10 minutes. Tlie address of the Board is 
801 Hillsborough St.. Suite 403. Raleigh, NC 
27603. Written comments or arguments may be 
mailed to the Board b\ June 14. 1993. 



CHAPTER 50 - BOARD OF EXAMINERS 

OF PLUMBESJG. HEATING AND FIRE 

SPRINKLER CONTRACTORS 

SECTION .0100 - ORGANIZATION 

.0106 LOCATION OF OFFICE 

The offic e of th e Stat e Board of Examin e r s of 
Plumbing. H e ating and Fir e Sprinkl e r Contractors 
is, l ocat e d at 8 06 Ral e igh Building. 5 W e st Harg e tt 
St root. — Ral e igh. — North Carolina. The mailing 
address is P.O. Box I 10. Raleigh. North Carolina. 

27602. the State Board of Examiners of Plumbing. 
Heating and Fire Sprinkler Contractors. 801 
Hillsborough Street. Suite 403. Raleigh. NC 

27603. The office hours are 8:30 a.m. to 5:00 
p.m., Monday through Friday. 

Statutory Authority G.S. 87-16: 87-18. 

SECTION .0300 - EXAMINATIONS 

.0306 APPLICATIONS: ISSUANCE OF 
LICENSE 

(a) All applicants for regular examinations shall 



file an application in the office of the executive 
secretary on or before the date set out on the 
examination application form, which date will be 
at least 30 days prior to the examination. 

(b) Applicants for the October 1990 examination 
shall present evidence at the time of application on 
forms provided by the Board to establish six 
months full-time experience in the installation, 
maintenance, service or repair of plumbing, 
heating or fire sprinkler systems related to the 
category for which license is sought, whether or 
not license was required for the work performed. 
One year of experience will be required of appli- 
cant for the April 1991 examinations. 18 months 
experience for the October 1991 examination, and 
two years of experience for the April 1992 exami- 
nation and examinations conducted thereafter. Up 
to one-half the experience may be in academic or 
technical training directly related to the field of 
endeavor for which examination is requested. The 
Board will pro rate part-time work of less than 40 
hours per week or part-time academic work of less 
than 15 semester or quarter hours. 

(c) Applicants who obtain a license will receive 
a certificate issued by the Board, bearing the 
license number assigned to the qualiiying individu- 
al. 

(d) The license number shall not be a s signed or 
transferred to any other individual. 

Statutory Authority G.S. 87-18: 87-21 (b). 

.0310 APPLICATION FOR LICENSURE BY 
RECIPROCITY 

The Board may grant, m its discretion, license 
by reciprocity pursuant to reciprocal licensing 
agreements worked out with various states after 
mutual review of the applicable licensing standards 
and examinations. 

Statutory Authority G.S. 87-18: 87-21 (g). 

.0311 IDENTIFICATION OF APPLICANTS 

The Board may require any applicant seeking 
licensure to submit proof of identification at the 
time of submitting the application and at the time 
of the examination. For purposes of this Rule, a 
valid driver's license, an identification card issued 
by the Department of Motor Vehicles or a passport 
shall constitute proper identification. 

Statutory Authority G.S. 87-18: 87-21 (h). 

SECTION .0400 - GENERAL PROCEDURES 



361 



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PROPOSED RULES 



.0402 PERMITS 

(a) A licensed contractor shall obtain permit 
from the local Code Enforcement official prior to 
the commencement of any work for which a 
license is required by the Board . 

(b) A licensed contractor shall not authorize 
permits to be obtained or allow his license number 
to appear on permits except for work over which 
he will provide general supervision until the 
completion of the work, for which he holds the 
contract and for which he receives all contractual 
payments. 

Statutory Authority G.S. 87-18; 87-26. 

.0403 USE OF LICENSE 

(a) A licensed contractor shall not permit the use 
of his license by any other person. 

(b) A contractor licensed by the Board shall not 
bid or contract installations requiring license of a 
type or classification which the licensee does not 
have except as a part of a documented joint ven- 
ture and not by attempting to subcontract the 
installation with a licensee holding the proper 
qualification. 

Statutory Authority^ G.S. 87-18; 87-23; 87-26. 

.0407 CORPORATIONS, PARTNERSHIPS 
AND TRADE NAMES 

(a) A license may be issued or renewed in the 
name of a corporation, partnership or business 
with a trade name upon compliance with the 
provisions of G.S. 87-26, verified by the execution 
of forms furnished by the Board. 

(b) Additional licensees may be added to licens- 
es issued in the above manner upon verifications of 
compliance with the provisions of G.S. 87-26. In 
the event a licensee terminates his association with 
a corporation, partnership, or business with a trade 
name, he shall immediately notify the executive 
secretary of the Board. 

(c) A person who has a license which has been 
expired less than three years may be added to an 
active license issued in the name of a corporation, 
partnership or business with a trade name, upon 
written request, completion of forms provided by 
the Board and payment of the fee set forth in Rule 
.1102 of this Chapter. 

(d) The license number assigned to a corpora- 
tion, partnership, or business with a trade name 
shall be that of the first licensee listed on the 
license. 

(e) A corporation, partnership or business with 
a trade name which is issued a license js subject to 



the provisions of G.S. 
Rules. 



87, Article 2 and to these 



Statutory Authority G.S. 87-18; 87-22; 87-26. 

.0412 GUIDELINES ON DISCIPLINARY 
ACTIONS 

(a) The provisions of G.S. 87, Article 2^ the 
rules of the Board and the matters referenced 
therein are part of the guidelines by which the 
conduct of an entity subject to the authority of the 
Board are evaluated. 

(b) The Board may suspend a license or impose 
probation provisions for violations of 21 NCAC 50 
.0402, 21 NCAC 50 .0403, 2i NCAC 50 .0404 
and 21 NCAC 50 .0405. 

(c) The Board may suspend a contractor's 
license or impose probationary terms when a 
licensee fails to comply with the supervision 
requirements of 21 NCAC 50 .0404, 21 NCAC 50 
.0406 or 21 NCAC 50 .0505. Multiple violations 
within the same proceeding may result in revoca- 
tion. 

(d) The Board may suspend or revoke a license 
where it is found that the licensee has failed to 
comply with the minimum standards of competence 
as set forth in 2i NCAC 50 ■0505(b). The Board 
may condition the subsequent reinstatement of 
license upon passing of the Board's examination or 
completion of specified educational courses. The 
Board may impose additional conditions of rein- 
statement. 

(e) The Board may suspend or revoke the 
license of a contractor where it is found that the 
contractor abandoned a job or after obtaining funds 
from the owner. 

(f) As a part of these provisions, the Board may 
revoke the license of any licensee where it is found 
that the contractor through a violation of G.S. 87. 
Article 2 has increased the risk of exposure to 
carbon monoxide, fire, or damage resulting there- 
from, the release of sewage, methane gas, or 
contamination of the potable water supply. 

(g) The foregoing provisions are illustrative 
guidelines of sanctions imposed by the Board and 
are not intended to limit the authority of the Board 
or the variety of facts for which action may be 
required in a particular situation. 

Statutory Authority G.S. 87-18; 87-23. 

SECTION .0500 - POLICY STATEMENTS 
AND INTERPRETATIVE RULES 

.0506 MINOR REPAIRS AND 



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May 14, 1993 



362 



PROPOSED RULES 



ALTERATIONS 

(a) The connection of a factory-installed and 
inspected mobile home drainage system to an 
existing approved premises sewer system, which 
premises sewer system extends from the septic 
tank or municipal sewer system, constitutes a 
minor repair or replacement. The connection of a 
factory-installed mobile home water system to an 
existing approved potable water supply on the 
premises constitutes a minor repair or replacement. 

(b) The initial installation or the subsequent 
replacement of a hot water heater in any structure 
requires a license in plumbing contracting except 
that the replacement of a hot water heater, with no 
change in fuel or energy source, energy use rate, 
routing or sizing of venting or piping, constitutes 
a minor replacement within the meaning of G.S. 
87-21(c). 

(c) The installation of a water purification 
system which interrupts the potable water supply 
does not constitute a minor repair or replacement 
within the meaning of G.S. 87-21(c). 

(d) Any connection, repair or alteration which 
requires interruption of the potable water supply or 
risks contamination of the potable water supply js 
not a minor repair, replacement or alteration. 

(e) Any connection, repair or alteration which if 
poorly performed creates substantial risk of fire or 
exposure to carbon monoxide, open sewage or 
other gases js not a minor repair, replacement or 
alteration. 

(f) The failure to enumerate above any specific 
type of repair, replacement or alteration shall not 
be construed m itself to render said repair, re- 
placement or alteration as minor within the mean- 
ins of G.S. 87-21(c). 

Statutory Authority G.S. 87-18; 87-21 (a)(1); 87- 
21(a)(5); 87-21 (c). 

.0510 LICENSE REQUIREMENTS 
GENERALLY 

An individual may not perform any work which 
is within the scope of G.S. 87-21 ( I ), 87-21 (2), 87- 
2I(.^), 87-21(4), or 87-21(11), and not otherwise 
excluded by G.S. 87-21 (c), for any other individu- 
al. Firm, body corporate or body politic no matter 
the form or arrangement of compensation unless 
the individual or another pro\iding general super- 
vision of the work has been issued the appropriate 
license by the Board. 

Statutory Authority G.S. 87-18; 87-21(c); 87- 
21(g)(5). 



SECTION .1000 - CONTESTED CASES 

.1006 INFORMAL PROCEDURES 

(a) The Board and party or parties may agree m 
advance at a pre-hearing conference to simplify the 
hearing by: decreasing the number of issues to be 
contested at the hearing; accepting the validity of 
certain proposed evidence; accepting the findings 
in some certain other case with relevance to the 
case at hand; or agreeing to such other matters as 
may expedite the hearing. 

(b) Prior to commencement to a contested case 
hearing, the Board may invite a licensee to partici- 
pate in an informal conference with one or more 
board members. An informal conference ordinari- 
iy takes place when it appears there may not be 
probable cause to hold a formal hearing. 

(c) As a part of the contested case hearing 
process, the Board may elect to conduct a summa- 
ry proceeding in a contested case. The procedure 
for a summary' proceeding is substantially as 
follows: 

After issuance of a notice of hearing in 



I 



Lh 



accordance with 21 NCAC 50 . 1(X)4. 



(2) 



I3i 



the matter [s considered by a single 
board member without a record. Each 
party may tender affidavits, documents 
and a closing statement. Live testimo- 
ny will not be received. 
Each party may present a recommenda- 
tion as to the terms of a Recommended 
Order. The presiding board member 
will consider the materials and recom- 
mendations and issue a Recommended 
Decision. ]f there js no objection within 
a specific time, a Summary Order wilj 
be recei\ed by a majority of the Board 
with a recommendation for adoption by 
the staff, the Board member involved 
and the respondent. 

Any party who does not agree with the 
recommended decision may notify the 
Board. The matter will then be heard 
de novo by a majority of the Board or 
as otherwise provided by 21 NCAC 50 
. 1 005 . The de novo hearing shall be 
conducted as other contested case hear- 



i 



ings are conducted pursuant to 21 
NCAC 50 .1000. The Board member 
who conducted the summary proceed- 
ings shall be disqualified from the de 
novo hearing. 

Statutory- Authority G.S. 87-18; 87-23; 150B-22. 



i 



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PROPOSED RULES 



SECTION .1100- FEES 

.1101 EXAMINATION FEES 

An examination fee of thirty five dollars ($35.00) 
must accompany an application for examination. 

(a) An application to reissue or transfer license 
to a different corporation, partnership or individual 
name requires a fee of twenty-five dollars 
($25.00). 

(b) An a pplication to issue or transfer license to 
the license of an existing licensee requires a fee of 
twentv-five dollars ($25.00). 

(c) An application for license by examination 
requires a fee of thirty-five dollars ($35.00) for the 
examination and a fee for issuance of license as set 
forth in 21 NCAC 50 .1102 or this Rule. 

Statutory Authority G.S. 87-18; 87-22.1. 



jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Real Estate 
Commission intends to amend rules cited as 21 
NCAC 58B .0101. .0201, and .0301. 

1 he proposed effective date of this action is 
August 2, 1993. 

1 he public hearing will he conducted at 9:00 
a.m. on June 17, 1993 at the Office of the North 
Carolina Real Estate Conunission, 1313 Navaho 
Drive, Raleigh, N.C. 27609. 

ixeason for Proposed Action: To clarify proce- 
dures and provisions when there are one or more 
existing registered developers at a time share 
project. 

(comment Procedures: Comments regarding the 
rules may he iruide orally or submitted in writing 
at the public hearing. Written comments not 
submitted at the hearing may be delivered to the 
North Carolina Real Estate Conunission, Post 
Office Box 17100, Raleigh, North Carolina 27619, 
so as to be received by the hearing date. 

CH7U»TER 58 - REAL 
ESTATE COMMISSION 

SUBCHAPTER 58B - TIME SHARES 



SECTION .0100 - TIME SHARE PROJECT 
REGISTRATION 

.0101 APPLICATION FOR 
REGISTRATION 

(a) Every application for time share project 
registration shall be filed at the Commission's 
offices office upon a form prescribed by the 
Commission. Every such application shall contain 
or have appended thereto: 

(1) information concerning the developer's 
title or right to use the real property on 
which the project is located, including 
a title opinion provided by an indepen- 
dent attorney performed within 30 days 
preceding the date of application; 

(2) information concerning owners of time 
shares at the project other than the 
developer; 

(3) a description of the improvements and 
amenities located at the project, includ- 
ing a description of the number and 
type of time share units; 

(4) a description of the time share estate to 
be sold or conveyed to purchasers; 

(5) information concerning the developer 
and his financial ability to develop the 
project, and information concerning the 
marketing and managing entities and 
their relationship to the developer; 

(6) the developer's name and address, past 
real estate development experience and 
such other information necessary to 
determine the moral character of those 
selling and managing the project; 

(7) copies of all documents to be distribut- 
ed to time share purchasers at the point 
of sale or immediately thereafter; and 

(8) such information as may be required by 
G.S. 93A-52. 

The form shall also describe the standards for its 
proper completion and submission. 

(b) In accordance with G.S. 93A-52, an applica- 
tion for time share registration shall be considered 
to be properly completed when it is wholly and 
accurately filled out and when all required docu- 
ments are appended to it and appear to be in 
compliance with the provisions of the Time Share 
Act, and, where the project is a condominium, the 
Condominium Act or Unit Ownership Act. 

(c) An entity which owns time shares at a time 
share project where there are one or more existing 
registered developers may also apply to the Com- 
mission for registration of its time shares, provided 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



364 



PROPOSED RULES 



that the entity does not control a registered devel- 
oper, is not controlled by a registered developer, 
and is not in common control of the project with a 
registered developer. 

Statutory' Authority G.S. 47A; 47C; 93A-51; 
93A-52(a). 

SECTION .0200 - PUBLIC OFFERING 
STATEMENT 

.0201 GENERAL PROVISIONS 

(a) Information contained in a public offering 
statement shall be accurate on the day it is sup- 
plied to a purchaser. Before any public offering 
statement is supplied to a purchaser, the developer 
shall file a copy of the statement with the Commis- 
sion. 

(b) In addition to the information required to be 
contained in a public offering statement by G.S. 
93A-44. every public offering statement shall 
disclose to the purchaser of a time share complete 
and accurate information concerning: 

(1) the real property type of the time share 
program, whether tenancy-in-common, 
condominium or other, and a descrip- 
tion of the estate the purchaser will 
own, the term of that estate and the 
remainder interest, if any, once the 
term has expired; 

(2) the document creating the time share 
program, a statement that it is the 
document which governs the program 
and a reference to the location where 
the purchaser may obtain or examine a 
copy of the document; 

(3) whether or not the property is being 
converted to a time share from some 
other use and, if so, a statement to that 
effect and disclosure of the prior use of 
the property; 

(4) the maximum number of time shares in 
the project, each recreational and other 
commonly used facility offered, and 
who or what will own each facility, if 
the project is to be completed in one 
development or construction phase; 

(5) if the project is planned in phased 
construction or development, the com- 
plete plan of phased offerings, includ- 

^ ing the maximum number of time 

shares which may be in the project, 
each recreational and other commonly 
used facility, who or what will own 
each facility, and the developer's repre- 



sentations regarding his commitment to 
build out the project; 

(6) the association of owners or other entity 
which will ultimately be responsible for 
managing the time share program, the 
first date or event when the entity will 
convene or commence to conduct busi- 
ness, each owner's voting right, if any, 
and whether and for how long the 
developer, as time share owner, will 
control the entity; 

(7) the location where owners may inspect 
the articles and bylaws of the owners 
association, or other organizational 
documents of the entity and the books 
and records it produces; 

(8) whether the entity has lien rights 
against time share owners for failure to 
pay assessments; 

(9) whether or not the developer has en- 
tered into a management contract on 
behalf of the managing entity, the 
extent to which the managing entity's 
powers are delegated to the manager 
and the location where a copy of the 
management contract may be examined; 

(10) whether or not the developer will pay 
assessments for time shares which it 
owns and a statement that the amount 
of assessments due the managing entity 
from owners will change over time, as 
circumstances may change; and 

(11) whether or not the developer sponsors 
or will sponsor a rental or resale pro- 
gram and, if so, a summary of the 
program or programs; and 

(12) the developer's role at the project, if 
the developer is a separate entity from 
any other registered developer of the 
time share project. 

(c) The inclusion of false or misleading state- 
ments in a public offering statement shall be 
grounds for disciplinary action by the Commission. 

Statutory Authority G.S. 93A-44(8); 93A-51. 

SECTION .0300 - CANCELLATION 

.0301 PROOF OF CANCELLATION 

(a) The postmark date affixed to any written 
notice of a purchaser's intent to cancel his time 
share purchase shall be presumed by the Commis- 
sion to be the date the notice was mailed to the 
developer. Evidence tending to rebut this pre- 
sumption shall be admissible at a hearing before 



365 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



PROPOSED RULES 



the Commission. 

(b) Upon receipt of a purchaser's written notice 
of hit; intent to cancel his time share purchase, the 
developer, or his agent or representative, shall 
retain the notice and any enclosure, envelope or 
other cover in the developer's files at the project, 
and shall produce the file upon the Commission's 
request. 

(c) When there is more than one registered 
developer at a time share project and a purchaser 
gives written notice of his intent to cancel his time 
share purchase that is received by a developer or 
sales staff other than the one from whom his time 
share was purchased, the developer or sales staff 
receiving such notice shall promptly deliver it to 
the proper developer who shall then honor the 
notice if it was timely sent by the purchaser. 

Statutory Authority^ G.S. 93A-51; 93A-54(d). 

TITLE 26 - OFFICE OF 
ADMINISTRATIVE HEARINGS 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the Office of Administrative Hear- 
ings intends to amend rules cited as 26 NCAC 1 
.0103. .0202: 2A .0102, .0401; 2B .0103, .0104. 
.0401: 4 .0008 and repeal rule cited as 26 NCAC 
2A .0701. 

1 he proposed effective date of this action is 
August 2, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on June 14, 1993 at the Lee House, Hearing 
Room ttl, 422 North Blount Street, Raleigh, NC 

ixeason for Proposed Action: 
26 NCAC 1 .0103 - to include the cost for docu- 
ments requested on computer diskette and to 
provide notice that cost may he subject to N. C 
.sales tcLX. 

26 NCAC 1 .0202 - to correct a citation that has 
been renumbered. 

26 NCAC 2A .0102 - to include the cost for the 
NCA C publications. 

26 NCAC 2A .0401 - to clarify what type size is 
acceptable for filing. 

26 NCAC 2A .0701 - to repeal rule establishing 
requirements for filing electronically /or publica- 
tion in the Administrative Code (NCAC). 
26 NCAC 2B .0103 - to correctly identify^ the 



information provided on the Register Publication 
Schedule. 

26 NCAC 2B .0104 - to provide notice that the 
cost may be subject to N. C. sales tax. 
26 NCAC 2B .0401 - to specify' the electronic 
format for agencies who choose to file proposed 
rules electronically. 

26 NCAC 4 .0008 - to establish procedures for 
filing civil rights contested case petitions in the 
event of failed conciliation. 

i^omment Procedures: Comments may be submit- 
ted in writing or in person at the public hearing or 
in writing prior to June 14, 1993 to Elaine 
Steinbeck. APA Coordinator, P.O. Drawer 27447, 
Raleigh , NC 27611- 7447. 

CHAPTER 1 - GENERAL 

SECTION .0100 - GENERAL 

.0103 COST FOR COPIES 

(a) Copies in loos e leaf form of any public 
documents filed in the Office of Administrative 
Hearings are available \n the following forms: 

(1) looseleaf form at a cost of two dollars 
and fifty cents ($2.50) for up to ten 
pages and fifteen cents ($0. 15) per page 
for each page in excess of ten - ^ and 

£2} 3 1/2 inch or 5 i/4 inch diskette at a 
cost of five dollars ($5.00) per diskette 
if the document is available in electron- 
ic form. 

(b) Certified copies of any public document filed 
in the Office of Administrative Hearings are 
available at a cost of one dollar ($1 .00) per certifi- 
cation in addition to the looseleaf copying cost set 
out in Paragraph (a) Subparagraph (a)(1) of this 
Rule. Diskette certification js not available. 

(c) Transcripts or tapes are available of contest- 
ed case hearings. Reference should be made to 
Rule 26 NCAC 3 .0022 for procedures for re- 
questing and costs of transcripts or tapes. 

(d) North Carolina sales tax shall be added if 
applicable. 

Statutory Authority G.S. 150B-21.25: 150B-37. 

SECTION .0200 - PETITION FOR 

RULE-MAKING - DECLARATORY 

RULINGS 

.0202 DECLARATORY RULINGS: 
AVAILABILITY 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



366 



PROPOSED RULES 



Declaratory rulings pursuant to G.S. 150B 17 
15QB-4 will be issued by the Office of Administra- 
tive Hearings upon written request only on the 
validity of a rule of the Office of Administrative 
Hearings or on the applicability of a rule or order 
of the Office of Administrative Hearings to stipu- 
lated facts. A declaratory ruling will not be issued 
on a matter requiring an evidentiary proceeding. 



t 



Statutory Authorin' G.S. 150B-4. 



CHAPTER 2 - RULES DIVISION 



SUBCHAPTER 2A - NCAC 



SECTION .0100 - PUBLICATION 



.0102 AVAILABILITY OF THE NCAC 

(a) The Office of Admini s trat i ve Hearings has available for public inspection all past and current rules filed 
under the prov i sion s of General Statute Chapter 150B. 

(b) The North Carolina Administrative Code is available in two forms as follows: 

fH Copies of individual rules arc available at a duplicating cost as established in 26 NCAC 1 .0103. 

i2j A compilation which is supplemented monthly. — The full compilation or ind i vidual volumes may 

be purchased at prices e s tablished in accordance with G.S. I50B 21.25. 
{ej — A cost as e s tabli s hed in 26 NCAC 1 .0103 is charged for eertif^y'ing any copies of the NCAC. 

(a) The Office of Administrative Hearings has available for public inspection all past and current rules filed 
under the provisions of G.S. 150B. Copies are available at a cost as established in 26 NCAC _[ .0103. 

(b) Monthly supplemented bound looseleaf compilations are available for a year's subscription at the 
following costs plus N.C. sales tax if applicable. Renewal for supplement service for one year is one-half the 
cost of a new subscription plus N.C. sales tax if applicable. 

New 
Volume Title Chapter Subject Subscription 



i 



53 
1 


ii26 
1 


2 


2 


3 


2 


4 


3 


5 


4 


6 


4 


7 


5 


8 


5 


9 


6 




7 


10 


8 


11 


9 


12 


JO 


11 


iO 


lA 


10 


11 


10 


16 


10 


12 


10 


18 


iO 


19 


10 



i;24 

25;52 

111 
3;20 
i; 2 

3 - 4 



i; 


2 


3A 


- 3K 


3L 


:3R 


3S 


- 3W 


4- 


6 


7 




8i 


9 


10 





All titles 

Administration 

Agriculture 

Agriculture 

Auditor 

ECD (includes ABC) 

ECD 

Correction 

Correction 

Council of State 



Cultural Resources 


Elections 


Governor/Lt. Governor 


Human 


Resources 


Human 


Resources 


Human 


Resources 


(includes CON) 


Human 


Resources 


Human 


Resources 


Human 


Resources 


Human 


Resources 


Human 


Resources 



$750.00 
90.00 
75.00 
75.00 
10.00 



45.00 
90.00 
60.00 
30.00 



60.00 
10.00 
45.00 
30.00 
90.00 



45.00 
30.00 
30.00 
30.00 
30.00 
30.00 



i 



367 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



PROPOSED RULES 



20 




10 




11 - 14 


Human Resources 


60.00 


21 




10 




15 - 17 


Human Resources 


45.00 


22 




10 




18 


Human Resources 


75.00 


23 




10 




19 - 30 


Human Resources 


90.00 


24 




10 




31 - 33 


Human Resources 


30.00 


25 




10 




34-41 


Human Resources 


60.00 


26 




10 




42 


Human Resources 


45.00 


27 




10 




43;5i 


Human Resources 


90.00 


28 




11 






Insurance 


90.00 


29 




12 






Justice 


90.00 


30 




13 




1 - 6 


Labor 


30.00 


31 




13 




7 


OSHA 


45.00 


32 




13 




8 - 16 


Labor 


45.00 


33 




14A 






Crime Control and 
Public Safety 


45.00 


34 




15A 




ill 


EHNR (includes EMC) 


90.00 


35 




15A 




3 - 6 


EHNR 


45.00 


36 




15A 




7 


Coastal Management 


45.00 


37 




15A 




8 - 9 


EHNR 


30.00 


38 




15A 




10 


Wildlife 


45.00 


39 




15A 




11 - 18 


EHNR 


90.00 


40 




15A 




I9;26 


EHNR 

(includes Breathalizer) 


75.00 


41 




16 






Education 


30.00 


42 




17 




1 - 6 


Revenue 


75.00 


43 




17 




7-11 


Revenue 


60.00 


44 




18 






Secretary of State 


30.00 


45 




19A 






Transportation 


90.00 


46 




20 






Treasurer 


45.00 


47 




2i 




i;i6 


Licensing Boards 


75.00 


48 




2i 




IZi 37 


Licensing Boards 


75.00 


49 




21 
22 




38;7g 


Licensing Boards 
Administrative Procedures 


75.00 


50 




23 






Community Colleges 


10.00 


51 




24 






Independent Agencies 


10.00 


52 




25 






State Personnel 


60.00 


53 




26 






Administrative Hearings 


10.00 


(c) Monthly s 


luppiemented electronic compilations in 


WordPerfect 5.2, DOS 5.0 or 


succeeding versions. 


condensed text 


with 


PKZIP on a 


I 3'/: inch (1.44 Mb] 


1 high density diskette, are available for a year's 


subscription at the following costs 


plus N.C. sales tax if 


' applicable; 














YEAR 








TITLE 




SUBSCRIPTION 








Titles 


1 - 


26 


450.00 








Title 


1 




60.00 








Title 


2 




60.00 








Title 


3 




10.00 








Title 


4 




60.00 








Title 


5 




60.00 








Title 


6 




30.00 








Title 


7 




30.00 








Title 


8 




10.00 








Title 


9 




45.00 








Title 


10 




360.00 








Title 


ii 




60.00 




8:4 


NORTH CAROLINA REGISTER 


May 14, 1993 


368 



PROPOSED RULES 



Title 12 

Title 13 

Title I4A 

Title 15A 

Title 16 

Title 17 

Title 18 

Title 19A 

Title 20 

Title 21 

Title 22 (Repealed) 

Title 23 

Title 24 

Title 25 

Title 26 

TI5A.02 & TI5A.13 



60.00 
60.00 
45.00 

300.00 
30.00 

120.00 
30.00 
60.00 
45.00 

120.00 



10.00 



10.00 

60.00 

10.00 

120.00 



(d) A looseleaf unbound compilation without supplement service is available at a cost of four hundred fifty 
dollars ($450.00) plus N.C. sales tax if applicable. Supplement service is available at a cost of one hundred 
and t\\'ent\'-fi\'e dollars ($125.00) per year plus N.C. sales tax if applicable. 

(e) An electronic compilation without supplement ser\'ice [s available at a cost of fifty dollars ($50. (X)) plus 
N.C. sales tax if applicable. The electronic format is WordPerfect 5.2. DOS 5.0 or succeeding versions, 
condensed with PKZIP and contained on a iVi inch (1 .44 Mb) high density diskette. 



Staturon' Authority G.S. 150B-21.18: 150B-21.25. 
SECTION .0400 - PHISICAL FORMAT 

.0401 GENERAL TiPING INSTRUCTIONS 

(a) The general typing instructions are as fol- 
lows: 

(1) an 8-1/2 by 11 inch sheet of paper (no 
letterhead, carbon copies or onion-skin 
accepted); 

(2) one side of the sheet only, with a one 
inch margin on all sides; and 

(3) black ink; use standard no less than 10 
and no larger than 12 point type only; 
do not use type of an unusual nature. 

(b) The sheet may not be turned around in the 
typewriter to accommodate wide charts. Charts or 
figures may be included in the body of a rule only 
if they can be typed within a 65 space maximum 
(including all blank spaces). 

Statuton Authority G.S. I50B-21.19. 

SECTION .0700 - ELECTRONIC FILINGS 

.0701 RULES FILED THROUGH ATMS 
COMPUTER SYSTEM 

ffr) — If any agency is connected to the State 
Computer Center, rules may bo filed through the 
ATMS computer s ystem. 

<4h — The ag e ncy shall also submit a completed 



typed Submission for Filing form and an original 
copy of the rule filed, as required by this Subchap 
ief-. — The rule shall be in th e computer system in 
proper format upon filing. 

(c) In using this process, the agency s hall submit 
with the filing an Electronic Filing form. — The 
Office of Administrative Hearings shall return a 
copy of the form notifiy'ing the contact person of 
th e tran s mittal date. — At this time, the agency may 
delete the document from it s s torage. 

Statutory Authority G.S. 1508-21.19. 

SUBCHAPTER 2B - NORTH CAROLEVA 
REGISTER 

SECTION .0100 - PUBUICATION 

.0103 SL'B.NnSSION AND PU'BLICATION 
SCHEDUXE 

(a) In order to be acceptable for publication, 
submissions for proposed administrative rules and 
executive orders shall be submitted to the Office of 
Administrative Hearings by the closing date for the 
issue as determined under Paragraph (c) of this 
Rule. 

(b) An agency may file submissions by facsimile 
(fax) transmission by 5:30 p.m. on the closing date 
for the issue as determined under Paragraph (c) of 
this Rule. In order to be acceptable for publica- 



369 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



PROPOSED RULES 



tion, the original submission must be received by 
the Office of Administrative Hearings within five 
business days following the faxed transmission. 

(c) The North Carolina Register will be pub- 
lished on the first and fifteenth of each month if 
the first or fifteenth of the month is not a Satur- 
day, Sunday or State holiday for employees man- 
dated by the State Personnel Commission. If the 
first or fifteenth of any month is a Saturday, 
Sunday or a holiday for State employees, the 
North Carolina Register issue for that day will be 
published on the day of that month closest to 
(either before or after) the first or fifteenth respec- 
tively that is not a Saturday, Sunday or holiday for 
State employees. The last day for filing for any 
issue of the North Carolina Register is 15 days 
before the issue date excluding Saturdays, Sundays 
and holidays for State employees, except that the 
last date for electronic filing is ten days before the 
issue date excluding Saturdays, Sundays and 
holidays for State employees. In computing the 
time prescribed or allowed by this Rule, the day of 
publication of the North Carolina Register is not to 
be included. The last day of the period so com- 
puted is to be included, unless it is a Saturday, 
Sunday or State holiday, in which event the period 
runs until the preceding day which is not a Satur- 
day, Sunday or State holiday. A half holiday shall 
be considered as other days and not as a holiday. 
A table of publication deadlines and schedules to 
include the issue date, last day for filing, last day 
for electronic filing, earliest date for public hear- 
ing, earlie s t date for adoption by the agency, last 
day of required comment period, and earliest 
effective date for at least the next 12 issues will be 
published in each issue of the North Carolina 
Register. 

Statutory Authority G.S. 150B-21.17. 

.0104 AVAILABILITY OF THE NORTH 
CAROLINA REGISTER 

The North Carolina Register is published twice 
monthly by the Office of Administrative Hearings 
and is available at a cost of one hundred and five 
dollars ($ 105.00) plus N.C. sales tax if applicable 
per year subscription. Requests for subscriptions 
should be directed to the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N. C. 
27611-7447, (919) 733-2678. 

Statutory Authorit}' G.S. 150B-21.25. 

SECTION .0400 - ELECTRONIC FILINGS 



.0401 ELECTRONIC FILINGS AND 
FORMAT 

(a) If an agency is connected to the State Com 
putcr Center, submission s for publication in the 
North Carolina Register may be transferred dec 
tronically through the ATMS computer system. 

(b) The agency shall submit the notice form and 
original copy of the statement of the subject matter 
or the rule as proposed as required in this Sub 
chapter. The statement of the subject matter or the 
rule as proposed s hall be in the computer system 
in proper format upon submission to the Office of 
Admini s trative Hearings. 

(c) In using this process, the agency shall s ubmit 
with the filing an Electronic Filing form. — The 
Office of Administrative Hearings shall return a 
copy of the form notifying the contact person of 
the tran s mittal date. — Upon receipt of the form 
containing the transmittal date, the agency may 
delete the document from its storage. 

(a) In order to be considered an electronic 
filing, an agency shall submit an electronic version 
of the proposed rule(s) in addition to the filing 
requirements in this Subchapter. 

(b) The electronic form shall be a 3 1/2 inch 
(1.44 Mb) or 5 1/4 inch (1.2 Mb) high density 
diskette compatible with or convertible to Word- 
Perfect 5.2, DOS 5.0 or succeeding versions. A 
list of compatible and convertible software is 
available from OAH. 

(c) The filed diskette shall identify the name of 
the document to be retrieved and the software 
used. 

(d) An edited copy of the proposed rule(s) and 
the filed diskette shall be returned to the agency. 

(e) OAH will refuse to accept for publication 
any notice in which the diskette is not compatible 
or convertible to the publication software. 

Statutory Authority G.S. 150B-21.17. 

CHAPTER 4 - CIVIL RIGHTS DIVISION 

.0008 CONTESTED CASE HEARING 

(a) Any cause determination that has not resulted 
in settlement or conciliation constituting full relief 
will be heard as a contested case by an Adminis- 
trative Law Judge in the Hearings Division. The 
charging party shall commence the proceedings by 
filing a petition for a contested case hearing as 
provided in G.S. 7 A 759, G.S. 150B, Article 3, 
and a final decision v»'ill be issued which is binding 
upon the parties. If the charging party has not 
filed a contested case petition within 60 days of 
Notice, the Civil Rights Division shall transfer the 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



370 



PROPOSED RULES 



charging party's file to EEOC. If the charging 
party files a timely petition, OAH shall conduct a 
hearing and issue a final decision which js binding 
upon the parties. 

(b) An administrative Inw Judge may enter a stay 
ponding the outcome of the ca s e where appropriate 
or required. Pending the investigation, concilia- 
tion or settlement of a deferred charge, an Admin- 
istrative Law Judge shall enter a stay in any 
related or ancillary contested case proceedings 
in\'ol\'ing the charging party. If the charging party 
initiates a contested case as provided in Paragraph 
(a) of this Rule, the stay shall be lifted and the 
related proceedings shall be consolidated or joined 
when appropriate and tried before the presiding 
Administratise Law Judge. 

(c) The OAH investigative report shall be made 
available to aU parties as provided in Section 83 of 
the EEOC Compliance Manual, Volume 1 (Octo- 
ber, 1987) incorporated herein by reference as 
well as subsequent amendments thereto. Copies of 
Section 83 are available upon request from the 
Office of Administrative Hearings, 424 N. Blount 
Street. Raleigh, N'C 27601 at no charge. 

(d) fe-> At the conclusion of the contested case 
hearing, the investigation report, the final decision 
in the contested case, and the case file will be 
forwarded to EEOC. 

Statuton- Authority G.S. 7A-759: 150B-21.6. 



371 8:4 NORTH CAROLINA REGISTER May 14, 1993 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 
Environmental Policy Act 

1 NCAC 25 .0213 - Environmental Policy Act Advisory Committee 

Agency Revised Rule 
1 NCAC 25 .0401 - Method of Compliance 

Agency Revised Rule 
1 NCAC 25 .0506 - Review Process 

Agency Revised Rule 
1 NCAC 25 .0603 - Format and Content 

Agency Revised Rule 

COMMERCE 
Banking Commission 

4 NCAC 3F .0402 - Required and Permissible Investments 

Agency Withdrew Rule 
Cemetery Commission 

4 NCAC 5B .0103 - Hearings 

Agency Revised Rule 
4 NCAC 5D .0101 - Report 

Agency Revised Rule 
4 NCAC 5D .0201 - Report 

Agency Revised Rule 
4 NCAC 5D .0202 - Delivery 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



RRC Objection 01/21/93 

Obj. Cont'd 02/18/93 

03/19/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



4 NCAC 16A .0105 - Restrictions: Payment of Dividends & Repurchase of Stock RRC Objection 

Agency Revised Rule Obj. Removed 

4 NCAC 16G .0311 - Required Provisions in Plan of Conversion RRC Objection 

Agency Revised Rule RRC Objection 

Agency Revised Rule Obj. Removed 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



03/18/93 
03/18/93 
03/18/93 
03/18/93 
04/15/93 



I5A NCAC 16A .1208- Use of Program Funds 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



372 



RRC OBJECTIONS 



Coastal Management 



15A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Rule Returned to Agenc}' 

Agency Filed Rule for Codification Over RRC Objection 

15A NCAC 7H .1205- Specific Conditions 
Rule Returned to Agency 



RR C Objection 11/1 9/92 
12/17/92 

RRC Objection 01/21/93 

02/18/93 

Eff. 03/01/93 

RR C Objection 03/1 8/93 
04/15/93 



Environmental Health 



15A NCAC 18A . 1948 - Site Classification 
Agency Revised Rule 



RR C Objection 03/1 8/93 
Obj. Removed 03/18/93 



Environmental Management 



15A NCAC 2H .1103 - Definitions 

Agency Revised Rule 
15A NCAC2H .1110 - Implementation 

Agency Responded 



RRC Objection 02/18/93 

Obj. Removed 03/18/93 

RRC Objection 02/18/93 

Obj. Cont'd 03/18/93 



Laboratory Services 



15A NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading 
Agency Revised Rule 



RRC Objection 03/18/93 
Obj. Removed 04/15/93 



Solid Waste Management 



15A NCAC 13A .0013 - The Hazardous Waste Permit Program - Part 270 
Agency Revised Rule 



RRC Objection 03/18/93 
Obj. Removed 03/18/93 



Wildlife Resources and Water Safety 



15A NCAC 101 .0001 - Definitions 
Agency Responded 
Agency Responded 
Rule Returned to Agency 



RRC Objection 10/15/92 

Obj. Cont'd 11/19/92 

Obj. Cont'd 12/17/92 

01/21/93 



HUMAN RESOURCES 

Children's Services 



10 NCAC 41 E .0514 - Child Cure & Development: Health 
10 NCAC 41 G .0705 - Medical Program 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 



RRC Objection 04/15/93 

RRC Objection 04/15/93 

Obj. Removed 04/15/93 

RRC Objection 04/15/93 



Departmental Rules 



10 NCAC IM .0002 - Complaints 

Agency Revised Rule 
10 NCAC IM .0003 - Investigation 

Agency Revised Rule 



RRC Objection 04/15/93 

Obj. Removed 04/15/93 

RRC Objection 04/15/93 

Obj. Removed 04/15/93 



373 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



RRC OBJECTIONS 



Facility Services 



10 NCAC 3C .2020 

Agency Revised 
10 NCAC 3C .2021 

Agency Revised 
10 NCAC 3C .2030 

Agency Revised 
10 NCAC 3C .2033 

Agency Revised 
10 NCAC 3H .1150 

Agency Revised 
10 NCAC 3H .1151 

Agency Revised 
10 NCAC 3H .1160 

Agency Revised 
10 NCAC 3H .1163 

Agency Revised 



- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 



Medical Assistance 



10 NCAC 50B .0203 - Application Processing Standards 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



INDEPENDENT AGENCIES 



N.C. Housing Finance Agency 



24 NCAC IM .0202 - Eligibility 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0204 - Selection Procedures 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0205 - Administration 

No Response from Agency 

No Response from Agency 

Agency Repealed Rule 
24 NCAC IM .0206 - Program Fees 

No Response from Agency 

No Response from Agency 

Agenc}' Withdrew Rule 
24 NCAC IM .0301 - Goal and Objectives 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0302 - Eligibility Requirements 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0303 - Tlireshold Review Criteria 

No Response from Agency 

No Response from Agency 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 



10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



374 



RRC OBJECTIONS 



Agency Revised Rule 
24 NCAC IM .0306 - Funding Commitment 

No Response from Agency 

No Response from Agency' 

Agency Revised Rule 
24 NCAC IM .0401 - Goals and Objectives 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0402 - Eligibility Recjuirements 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0403 - Threshold Review Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0404 - Ranking Criteria 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 
24 NCAC IM .0405 - Agency Board Approval 

No Response from Agency 

No Response from Agency 

Agency Revised Rule 



Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Removed 



01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 
10/15/92 
11/19/92 
12/17/92 
01/21/93 



INSURANCE 



Actuarial Services 



11 NCAC 16 .0303 - Annual Filing 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



Consumer Services 



11 NCAC 4 .0428 - Enforcement 
Agency Revised Rule 
Agency Repealed Rule 



RR C Objection 03/1 8/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



Financial Evaluation Division 

11 NCAC llA .0602 - Licensure RRC Objection 11/19/92 

Agency Revised Rule RRC Objection 11/19/92 

Rule Returned to Agency 12/17/92 

Agency Filed Rule for CodificcUion Over RRC Objection Eff. 12/29/92 

11 NCAC IIB .0508 - Foreign Company Securities: Verifiable Capital/Surplus RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

11 NCAC IIB .0607 - Applicatiim - Employers RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 04/15/93 

11 NCAC IIB .0608 - Deposits: Bcmds: E.xcess Insurance - Employers RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

11 NCAC IIB .0610 - Application - Groups RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 04/15/93 

11 NCAC IIH .0002 - License - Steps RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 



375 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



RRC OBJECTIONS 



JUSTICE 

Private Protective Services 

12 NCAC 7D .0205 - Corporate Business License 

Agency Revised Rule 
12 NCAC 7D .0809 - Authorized Firearms 

LICENSING BOARDS AND COMMISSIONS 

Electrical Contractors 

21 NCAC 18B .0703 - Reciprocity: Virginia 
Rule Returned to Agency - Improper Notice 

Medical Examiners 

21 NCAC 32A .0001 - Location 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0101 - Definitions 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0209 - Fee 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0210 - Deadline 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .021 1 - Passing Score 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0212 - Time and Location 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0213 - Graduate Medical Ed & Training for Licensure 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0214 - Personal Interview 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0215 - Examination Combinations 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0305 - Examination Basis for Endorsement 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0309 - Personal Interview 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0314 - Passing Flex Score 

Rule Returned to Agency - Improper Notice 
21 NCAC 32B .0315 - Ten Year Qualification 

Rule Returned to Agency - Improper Notice 
21 NCAC 32C .0003 - Prerequisites for Incorporation 

Rule Returned to Agency - Improper Notice 
21 NCAC 32C .0006 - Charter Amendments and Stock Transfers 

Rule Returned to Agency - Improper Notice 
21 NCAC 32H .0102 - Definitions 

Agency Revised Rule 
21 NCAC 32H .0901 - Conditions 

Agency Revised Rule 

Optometry 

21 NCAC 42B .0302 - Continuing Education 



RRC Objection 02/18/93 
Obj. Removed 03/18/93 
RRC Objection 04/15/93 



RRC Objection 
Obj. Cont'd 



RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Renwved 



02/18/93 
02/18/93 



02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
02/18/93 
03/18/93 
03/18/93 
03/18/93 
03/18/93 



RRC Objection 03/18/93 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



376 



RRC OBJECTIONS 



Agency Revised Rule Ohj. Removed 03/18/93 

21 NCAC 42E .0203 - Consultant: Advisor. Staff Optometrist/lnd Contractor RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

21 NCAC 42L .0005 - Written Answers to the Notice of Hearing RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 

21 NCAC 42 M .0006 - Termination RRC Objection 03/18/93 

Agency Revised Rule Obj. Removed 03/18/93 



REVENUE 



Individual Income Tax Division 



17 NCAC 6B .0107 - E.xtcnsions 

Agency Revised Rule 
17 NCAC 6B .0115 - Additions to Federal Taxable Income 

Agency Revised Rule 
17 NCAC 6B .01 16 - Deductions from Federal Taxable Income 

Agency Revised Rule 
17 NCAC 68 .0117 - Transitional Adjustments 

Agency Revised Rule 
1 7 NCA C 63 . 3406 - Refunds 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Ohj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



08/20/92 
09/1 7/92 
08/20/92 
09/17/92 
08/20/92 
09/1 7/92 
08/20/92 
09/17/92 
08/20/92 
09/17/92 



STATE PERSONNEL 



Office of State Personnel 



25 NCAC ID .0511 - Reduction in Force Priority Consideration 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 



377 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



I NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department cf Community Colleges and The North Carolina Department of Administration, Respondent and 
Tlie University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IH, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d) (10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle). 
Steven Harris, and John Doe, Petitioners v. Conwiission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cohey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Conmiunicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment , Health, and Natural Resources, Respondents (91 EHR 0818). 



8:4 NORTH CAROLINA REGISTER May 14, 1993 378 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significunt Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



{ 



ACKNCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



McLnunn Parking Co. \ Administration 

.ALCOHOLIC BEVERA<;E CONTROL COMMISSION 



Alcoholic Bc\'t:rage Control Comm- 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 



Ann Oldham McDowell 
Gar> Morgan Neugent 
Kirby Ronald Eldridge 
Larry Isacc Hailslock 



Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz 



92 DOA 1662 



Morrison 04/02/93 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1483 


Reilly 


04/07/93 


93 ABC 1475 


Nesnow 


03/23/93 



8:3 NCR 320 



COMMERCE 



Lesler Moore V. Weathcnzalion Assistance Program 
CRIME COrvJTROL AND PUBLIC SAFTLTY 



93 COM 0105 



Gray 



03/08/93 



George W. Paylor v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 

ENVIRONMENT. HEAI.TH. AND NATURAL RESOURCES 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


93 CPS 0152 


Nesnow 


04/02/93 



8:3 NCR 327 



Charles L, Wilson v. Environment, Health, & Natural Resources 
Uliey C. Stallings v. Environment, Health, & Natural Resources 
Safeway Removal. Inc. v. Environment, Health, & Natural Res. 
Elizabeth City/Pasquotank Cty Mun Air^iort Auth v. EHNR 
City of Salisbury v. Environment, Health, &. Natural Resources 
Willie M. Watford v. Hertford Gatet; District Health Department 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Mustafa E. Essa v. Environment. Health. & Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0146 


Gray 


03/29/93 



8:1 NCR 83 



HUAL\N RESOURCES 

O.C. Williams \' Human Resources 
O.C. Williams v. Human Resources 
Randy Chambliss v. Human Resources 
Jeffery D. Williams v. Human Resources 
William A. Dixon v. Human Resources 
Gregory L. Washington v. Human Resources 
Dwayne Allen v. Human Resources 
Edwin Ivcster v. Human Resources 
Barbara W. Catlett v. Human Resources 
Leon Barbee v. Human Resources 
Barbara Jones v. Human Resources 
Ida Diane Davis v. Human Resources 
Edward E. Brandon v. Human Resources 



91 CSE0036*: 


Morgan 


03/30/93 




91 CSE 1158*= 


Morgan 


03/30/93 




91 CSE 1187 


Morgan 


04/28/93 




91 CSE 1231 


Morgan 


04/28/93 




91 CSE 1277 


Morrison 


03/04/93 




92 CSE 0075 


Morgan 


04/01/93 




92 CSE 0196 


Morgan 


03/31/93 




92 CSE 0268 


Nesnow 


03/30/93 




92 DCS 0577 


West 


03/15/93 




92 DHR 0658 


Morrison 


04/30/93 


8:4 NCR 392 


92 DHR 1192 


Nesnow 


04/02/93 


8:3 NCR 313 


92 DCS 1200 


Gray 


03/29/93 




92 CSE 1237 


Gray 


04/16/93 





Consolidated cases. 



i 



379 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Darrell W, Russell v. Human Resources 

Michelle D. Mobley v. Human Resources 

Byron Christopher Williams v. Human Resources 

Joyce P. Williams v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Lyndell Greene v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller HI v. Human Resources 

Larry L. Crowderv. Human Resources 

Carlos Bernard Davis v. Human Resources 

Timothy Brian Eller v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockley v. Human Resources 

Rene Thomas Rittenhouse \'. Human Resources 

Thomas Edward Williamson v. Human Resources 

Roy Chester Robinson v. Human Resources 

William E. Ingram v. Human Resources 

Romeo F. Skapple v. Human Resources 

Jeffrey L. Garrett v. Human Resources 

Brian C. Gilmore v. Human Resources 

Isaac Maxwell v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc 

Betty Butler V. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 



CA5 


>E 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 1249 


Becton 


04/20/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 DHR 


1275 


Gray 


03/15/93 


92 CSE 


1316*' 


Reilly 


03/25/93 


92 CSE 


1346 


Nesnow 


04/16/93 


92 CSE 


1360 


Morrison 


04/15/93 


92 CSE 


1361 


Gray 


04/16/93 


92 CSE 


1396 


Reilly 


04/15/93 


92 CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 


1416 


Mann 


04/15/93 


92 CSE 


1418 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 


92 CSE 


1423 


Reilly 


04/15/93 


92 CSE 


1450 


Reilly 


04/15/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1557 


Gray 


04/22/93 


92 CSE 


1576 


Gray 


04/26/93 


92 CSE 


1589 


Reilly 


04/26/93 


92 DHR 


1612 


Chess 


03/08/93 


92 DHR 


1613 


Chess 


03/08/93 


92 DHR 


1614 


Chess 


03/09/93 


92 CSE 


1629 


Reilly 


03/25/93 


92 CSE 


1631 


Reilly 


03/25/93 


92 CSE 


1633 


Reilly 


03/25/93 


92 CSE 


1652*' 


Reilly 


03/25/93 


93 DHR 0010 


Becton 


03/11/93 



PUBLISHED DECISION 
REGISTER CITATION 



INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 
JUSTICE 



92 INS 1464 



Chess 



03/10/93 



Marilyn Jean Britl v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. &. Training Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. &. Training Standards Commission 



92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 



LABOR 



Greensboro Golf Center, Inc. v. Labor 



92 DDL 0204 



04/15/93 



MORTUARY SCIENCE 



Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 
STATE PERSONNEL 



92 BMS 1169 



Reilly 



04/29/93 



8:4 NCR 396 



Brenda G. Mitchell v. Correction 

Clayton Brewer v. North Carolina State University 

Donnie M. WTiite v. Correction 

Renee E. Shepherd v. Winston-Salem State University 

Willie Granville Bailey v. Winston-Salem State University 

Julia Spinks \ . Environment, Health, &. Natural Resources 

James B. Price v. Transportation 

I. Cary Nailling v. UNC-CH 

Deborah Barber v. Correction 

Laverne B. Hill v. Transportation 

Jimmy D. Wilkins v. Transportation 

Glinda C. Smith v. Wildlife Resources Commission 

Larry O. Nobles v. Human Resources 

Willie Thomas Hope v. Transportation 

Suzanne Ransley Hill v. Environment, Health, &. Nat. Res. 

John B. Sauls v. Wake County Health Department 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 



91 OS P 0625 


West 


03/08/93 


8:1 


NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 


NCR 306 


91 OSP 1236 


Morgan 


04/05/93 






91 OSP 1391 


Morgan 


04/28/93 






92 OSP 0285 


Morrison 


03/10/93 






92 OSP 0313 


Becton 


04/12/93 


8:4 


NCR 382 


92 OSP 0375 


Gray 


04/13/93 






92 OSP 0394 


Becton 


04/20/93 






92 OSP 0396 


Chess 


03/04/93 






92 OSP 0431*" 


West 


03/08/93 






92 OSP 0432*' 


West 


03/08/93 






92 OSP 0653 


Morrison 


03/12/93 






92 OSP 0732 


Mann 


04/23/93 






92 OSP 0947 


Morgan 


03/23/93 






92 OSP 0992 


Reilly 


03/18/93 


8:2 


NCR 224 


92 OSP 1142 


Reilly 


03/08/93 


8:1 


NCR 88 


92 OSP 1243 


Reilly 


03/05/93 







8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



380 



CONTESTED CASE DECISIONS 



AGENCY 



Brenda K- Campbell v- Employment Security Commission 

James B. Priee v. Transportation 

Belty Bradsherv. UNC-CH 

Jamal Al Bakkat-Morris v, Glenn Sexton (DSS) 

Brenda Kay Barnes, v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. Counly of Slanly 

George W. Allen v. Human Resources. Correction, Agri & EHNR 

William G. Fisher v. St Bd ot Ed. Albermarle City Schools & Bd of Ed 

Clifton E. Simmons v. Correction 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 



CASK 




DATE OF 


NUMBKR 


Al.,| 


DECISION 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1733 


Bccton 


03/30/93 


92 OSP 1741 


Beclon 


03/24/93 


92 OSP 1768 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Becton 


04/19/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Becton 


04/01/93 


93 OSP 01 11 


Reilly 


04/16/93 


93 OSP 0134 


Beclon 


04/20/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0177 


West 


04/21/93 



PUBLISHED DECISION 
REGISTER CITATION 



i 



statp: trp:asurer 



Herman D. Brooks v. Bd of Trustees /Teachers' & St Emp Ret Sys 
Henrietta Sandlin V. Teachers' & State Emp Comp Major Medical Plan 
Mary Alyoe Cannichael v. Bd/Trustees/Teachers' & St Emp Ret Sys 



91 


DST 0566 


Gray 


04/13/93 


92 


DST 0305 


Morgan 


04/12/93 


92 


DST 1506 


Chess 


04/08/93 



TRANSPORTATION 

^'ates Construction Co., Inc. v. Transportation 



92 DOT 1800 Morgan 03/25/93 



i 



381 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF RANDOLPH 



IN THE OmCE OF 
ADMEVISTRATTVE HEARINGS 

92OSP0313 



JULIA SPINKS, 

Petitioner. 

V. 

N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
N.C. ZOOLOGICAL PARK, 
Respondent. 



RECOMMEND DECISION 



The Petitioner filed a Petition for a contested case hearing on April 4, 1991, alleging that her 
dismissal was the result of harassment. The Respondent asserted in its Prehearing Statement filed on May 
13, 1991. that it properly dismissed the Petitioner on the basis of poor job performance. 

This matter was heard before Brenda B. Bectcn, Administrative Law Judge, in three separate settings 
on August 6-7.12-13 and October 21. 1992, in Raleigh. North Carolina. The record was held open until 
March 2, 1993, for the submission of proposed recommended decisions. 

APPEARANCES 



Petitioner: 



Abraham P. Jones. Attorney at Law. Raleigh. 
North Carolina. 



Respondent: 



Edwin L. Gavin 11. Associate Attorney 

General, North Carolina Department of Justice. Raleigh, North Carolina. 



ISSUES 

1 . Whether the Respondent had just cause for dismissing the Petitioner from her position as a 
Clerk III at the N.C. Zoological Park as a result of alleged failed job performance. 

2. Whether the Petitioner was harassed for sometime prior to November 2, 1990. and then 
ultimately dismissed from her position with the Respondent on November 2. 1990. as a result of unlawful 
racial discrimination in violation of North Carolina General Statutes section 126-36. 

nNDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

L The Petitioner. Julia Spiaks. was employed by the Respondent in the position of Clerk 111 as a non- 

exempt, permanent employee, pay grade 57, at the time of her termination on November 2, 1990 for 
unacceptable job performance. 

2. At the time of her dismissal, the Petitioner had been continuously employed by the Respondent for 

a period in excess often years. 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



382 



CONTESTED CASE DECISIONS 



3. In her role as Clerk III, a secretary position within the Marketing Division at the Zoo, the Petitioner 
was, among other things, responsible for the following: 

Screening and routing all U.S. and State courier mail to all Zoo divisions and processing out- 
going mail, including bulk mailings; back up to the Zoo receptionist in stuffing new releases, tourism, 
and other Marketing Division mailings; sending out group information packets, processing registration 
forms, arranging for tickets, keeping account of group monies collected, and logging group 
information into the ledger as directed by the Group Program Coordinator; developing knowledge of 
Zoo history, exhibits, and operations; preparing media information kits, assisting with special events, 
and with registration of media at press conferences; escorting media and VIP's when requested by 
the Public Relations Coordinator; responding to ninety-five percent (95%) of requests within five 
working days, using proper business letter form, and correct spelling and punctuation; completing 
forms, making reservations, and ensuring that division, department, and state regulations are 
followed, and that forms contain no more than four errors per draft and no more than three errors 
per finished document; completing travel logs, coordinating service needs for the safety and 
maintenance of vehicles at least once a month; maintaining a schedule of those who relieve the Zoo's 
full-time receptionist during breaks, vacations, or periods of illness; making certain that the Marketing 
Division reception area was kept clean and that materials in the storage closet and filing cabinet were 
stored neatly for easy access; accurately typing news releases and drafts to final form; answering the 
main phone line of the Marketing Division and transferring calls to proper staff; keeping an updated 
copy of all promotions, news releases, and publicity materials in a ringed binder; and providing 
clerical assistance for the Marketing Officer when needed. 

4. During the time period that the Petitioner worked for the Respondent and at all times pertinent to this 
action, while she was working under the Marketing Director, Elise Light, the Petitioner received a 
performance rating of proficient or better, except for once when she received a "needs improvement," 
on all of her WPPR's from the 1980 time period forward until her dismissal, including her last WPPR 
dated April 1, 1990 through September 30, 1990 which was signed by the Petitioner and Ms. Light 
on October 4, 1990. 

5. The Petitioner was first employed by the Zoo in 1980 as a temporary employee. In 1983, The 
Petitioner took a permanent position as a Clerk II in the Public Information Office which was headed 
by Elise Light. The Petitioner's Clerk II position was later upgraded to a Clerk III position. In 1986, 
Elise Light became the Marketing Director and a Secretary IV position was established in what was 
now the Marketing Office. The Secretary IV position was established as an administrative assistant 
position with the ultimate objective being that the person in that position would aid the marketing 
officer by conducting special events. 

6. During the Summer of 1986, while in the Clerk III position, Ms. Light allowed the Petitioner to 
supervise a temporary seasonal employee. Gay Brewer. 

7. The Petitioner applied for the Secretary IV position. 

8. Ms. Light recommended the Petitioner for the Secretary IV position despite the allegations, which 
she accepted to be true, that the Petitioner was rude to Gay Brewer and attempted to give Ms. Brewer 
work which had been assigned to the Petitioner, and despite Ms. Light's opinion that the Petitioner 
did not prove to be a successful supervisor. 

9. In October, 1986, the Petitioner was promoted to the Secretary IV position. As a Secretary IV, the 
Petitioner was the administrative assistant to the Marketing Director and responsible for the office 
management of all Marketing Division administrative matters; and worked with a Clerk III to provide 
total division clerical support. Specifically, the Secretary IV's duties included the following: (1) 
routinely performs selected file and retrieval duties in direct support of the Marketing Director; 
routinely types correspondence, reports, promotional proposals, memorandums, brochure copy, news 
releases, public service announcements, and other materials from drafts prepared by the Marketing 



383 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



Director; proofreads material for Zoological Park and Visitor Relations brochures, news releases, 
radio and television scripts and other materials prepared for distribution to the public; (2) attend 
conferences and meetings to take notes and minutes to be transcribed into a typed report; (3) compose 
responses to letters of complaint, compliment and requests for information from individuals planning 
to visit the Zoological Park; complete forms requesting information about the Zoo for directories, 
government agencies, tourism publications; compile information and compose Zoo history and arrange 
for annual publication of updated history; compose letters to accompany mailings of quantities of Zoo 
brochures to welcome centers, chambers of commerce, libraries and others; (4) assist the Marketing 
Director with special projects; respond to requests for information from the general public, business 
firms, government agencies and others in writing, by telephone and in person; assist Public Relations 
Officer in escorting reporters and photographers around the Zoo and supervising promotional events 
such as a Zoo and Aquarium Month; assist Visitor Relations Coordinator in escorting corporate and 
organization officials and supervising group activities such as the statewide meeting of the North 
Carolina Girl Scout Council; handle reception and telephone duties for the Zoo administrative offices 
during the Clerk Ill's lunch hour and in her absence, as needed; (5) review media billings for 
accuracy and performance of Zoo advertising, review and forward for payment billings for other 
Marketing Division expenditures. 

10. In February, 1987, Rod Hackney began working at the Zoo as the Public Relations Coordinator and 
a new Clerk III, Judy Milliard was hired. Greta Lint was transferred from the Public Information 
Officer position to that of group programs coordinator. 

11. As between Ms. Hilliard and the Petitioner, the Petitioner was to type for Ms. Light and Ms. Milliard 
was to type for Ms. Lint and assist Mr. Mackney. Mr. Mackney did his own typing. 

12. In 1988, Ms. Hilliard complained to Ms. Light that the Petitioner was giving her work that the 
Petitioner should have done herself, and Ms. Milliard felt she could no longer handle the Petitioner's 
work as well as her own. Ms. Light's attempts to mediate between the Petitioner and Ms. Hilliard 
were unsuccessful. 

13. Notwithstanding the problems which the Petitioner had interacting with Ms. Brewer and Ms. Hilliard, 
Ms. Light never confronted the Petitioner with the alleged problems regarding work distribution until 
the interpersonal problems in both situations were extreme and had gotten out of hand. 

14. Ms. Light eventually gave the task of supervising the Clerk III position to Mr. Hackney and increased 
the Petitioner's special events assignments to balance out her loss of supervisory responsibilities. 

15. The dismissal document, dated November 2, 1990, reflects that the Petitioner was given an oral 
warning on July 19, 1989 for job performance; a written warning on November 20, 1989 for job 
performance; a final written warning on May 22, 1990 for job performance; and the Petitioner's 
dismissal was also for job performance. 

16. Attached to the November 2, 1990 letter of dismissal was a memorandum to the Petitioner from Elise 
D. Light and James R. Hackney. The memorandum was composed primarily by Ms. Light. 

17. Throughout the disciplinary process covering the years of 1988, 1989, and 1990, only one of the 
Petitioner's WPPR's reflected some of the problems that she was allegedly having such as her 
inability to work with the Clerk III; not being able to speak articulately; not completing assignments 
on time; making numerous typographical errors in work; failing to complete mailing on time; being 
rude to visitors and to people on the telephone; failing to answer the phone; being generally difficult 
for her co-workers to get along with; taking excessive sick leave and time off of work during the day; 
and displaying a threatening and hostile attitude toward co-workers. 

18. In January, 1989, at the Zoo director's suggestion, the Petitioner and Ms. Light met with the 
Respondent's employee relations director, Joe Stroup, who attempted to mediate the problems that 



8:4 NORTH CAROLINA REGISTER May 14, 1993 384 



CONTESTED CASE DECISIONS 



the Petitioner and Ms. Light were having working together. 

19. Up until the January, 1989, meeting with Mr. Stroup, the problems Ms. Light had with the Petitioner 
concerned interpersonal relationships within the Marketing Division office. 

20. Although the mediation session with Mr. Stroup appeared to end on a positive note, the Petitioner 
testified that while she and Ms. Light were leaving the building, Ms. Light said that she would 
eventually "get" the Petitioner. 

2\. Following the January, 1989, meeting with Mr. Stroup, the Petitioner began to receive a series of 

disciplinary warnings citing poor job performance. 

22. After each of the warnings the Petitioner received, she attempted to respond to the charges. In 
addition to attempting to respond to Ms. Light's criticism, the Petitioner attempted to change her 
circumstances by voluntarily taking a demotion from Secretary IV to Clerk III in February, 1990. 

23. As the Clerk III, the Petitioner no longer had responsibility for assisting with the special events or 
providing secretarial support for Ms. Light. Mr. Hackney became the Petitioner's supervisor. 

24. Although the Petitioner got along with Mr. Hackney, she was not aware that in May, 1990, 
specifically on May 12, 1990, Mr. Hackney was aware that the Petitioner's position was "terminal" 
and he expected her to be dismissed soon. Mr. Hackney wrote this information in a memorandum 
to a former Zoo employee, Camille Cunnup. Upon questioning on the witness stand about these 
events, Mr. Hackney first denied in absolute terms that he would have ever said that the Petitioner 
was "terminal"; but upon being shown the May 12, 1990, memorandum, Mr. Hackney changed his 
testimony and said he did not recall writing the memo. Even after seeing the document, Mr. Hackney 
said he did not recall the reasons why he would have said that the Petitioner was "terminal." 

25. Mr. Hackney was not a credible witness. 

26. During further testimony at trial, Mr. Dwight Holland, the former Zoo Curator, and Ms. Dorothy 
Lilly, the Zoo director's secretary, both testified that Greta Lint told each of them that Ms. Light was 
conspiring to set the Petitioner up for firing. 

27. Ms. Lint did not deny that she had told either Mr. Holland or Ms. Lilly that Ms. Light was 
conspiring to fire the Petitioner. When questioned during the hearing, she only responded that if Mr. 
Holland and Ms. Lilly testified that she had said such, she would not dispute it. 

28. Ms. Light went to see Ms. Lint at her home in order to solicit information from Ms. Lint which she 
could include in the Petitioner's final written warning. 

29. The final sequence of warnings against the Petitioner all took place approximately six months apart 
and usually involved work that was generated directly from Ms. Light, and not from the Petitioner's 
supervisor, Mr. Hackney, or anyone else. 

30. At the time of her dismissal and throughout the time of her working for the Respondent, the Petitioner 
was the only African-American working in the Marketing Office of the Zoo. She was also the only 
African-American working in the Zoo's administrative offices. 

31. With the exception of Elise Light, Rod Hackney, Gay Brewer, and Judy Hilliard, none of the persons 
who worked with the Petitioner at the Zoo testified that they had problems getting along with the 
Petitioner or problems understanding the Petitioner's diction. None of them ever observed the 
activities which were testified to by Ms. Light and Mr. Hackney, such as the Petitioner's excessive 
typographical errors, absences from work during the day, rudeness to fellow workers, threatening 
attitude toward fellow workers, and a general failure to perform her duties. This included the 



385 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



testimony of Dorothy Lilly, Lynn Adams, Rod Craven, R.B. York, Dwight Holland, and Karen 
Sandifer. 

32. On November 2, 1990, the Respondent terminated the Petitioner's employment as a Clerk III for job 
performance. The reasons for the termination as stated by the Respondent included the Petitioner's 
failure to complete the typing in a timely manner of a 3-page speech to be given by Ms. Light, failure 
to complete in a timely manner the typing of three letters, failure to complete in a timely, professional 
manner the typing of review comments on three WPPR's, failure to timely complete the typing of 
mailing labels, and failure to timely return a check for brochures. All of these assignments were 
given to the Petitioner by Ms. Light. 

33. The Petitioner never discussed her health in any great detail with .Ms. Light. Ms. Light was aware, 
however, that the Petitioner suffered from headaches and she gave the Petitioner information 
regarding migraine headaches. There is no evidence that Ms. Light asked the Petitioner for further 
details regarding her health problems, or that the Petitioner refused to provide information when 
requested to do so. 

34. After the Petitioner was terminated, she was succeeded in the Clerk III position by a white women. 

35. The Marketing Office, at the time of the Petitioner's employment, was responsible for $1,000,000 
a year in free advertising for the Zoo. The Marketing Office's primary job is to raise attendance at 
the Zoo, which in turn provides Zoo revenue. The objective of the free advertising obtained for the 
Zoo by the Marketing Office is to raise attendance. Due to budget cuts and the resulting pressure to 
increase Zoo revenue, the atmosphere in the Marketing Office was extremely tense. 

The AAZPA Speech 

36. On Monday, October 15, 1990, Ms. Light gave the Petitioner a copy of a speech she had typed on 
her computer at home but had not been able to get her computer to paginate the speech properly. TTie 
copy of the speech that the Petitioner was given was on one long sheet of paper and the print was 
very light. The Petitioner was instructed to make the speech fit on separate pages. The Petitioner 
asked Ms. Light for the disk that she had used to write the speech. Ms. Light told the Petitioner that 
the disk was at her home because she needed it there for other work and that the Petitioner could "cut 
and paste" to make the paragraphs fit if that would work. Ms. Light informed the Petitioner that she 
needed the speech by Wednesday, October 17, 1990. The Petitioner cut and pasted the speech so that 
it was on three and one half separate pages and then made a copy which she gave to Ms. Light the 
next day. 

37. On Thursday, October 18, 1990, Ms. Light returned the speech to the Petitioner indicating that she 
did not think the speech would reproduce well because it was so light. Ms. Light suggested that the 
Petitioner should simply retype the speech and gave the Petitioner a copy of AAZPA guidelines for 
the Petitioner to follow in retyping the speech which she now wanted completed by Friday, October 
19, 1990. 

38. While she was substituting for the Director's secretary, the Petitioner retyped the speech on a 
computer in the Director's secretary's office on October 19, 1990. She had some problems with the 
margins using a software known as DW4 and asked a fellow employee who was familiar with the 
program for assistance. The Petitioner returned the speech to Ms. Light on Friday, October 19, 1990 
at approximately 3:45 p.m. 

The Letters 

39. During the week beginning October 15, 1990, Ms. Light gave the Petitioner a letter to type and at 
the same time informed the Petitioner that other letters would be forthcoming. The Petitioner typed 
the letter given her on October 17, 1990. The Petitioner was never given the other letters that Ms. 



8:4 NORTH CAROLINA REGISTER May 14, 1993 386 



CONTESTED CASE DECISIONS 



Light said would be forthcoming and which Ms. Light gave to Ms. Lilly to type when the Petitioner 
was out on sick leave on Monday, October 22, 1990. 

The WPPR's 

40. The Petitioner was given the task of typing Work Planning and Performance Reviews (WPPR's) for 

Rod Hackney, Chris Bulla, and Rod Hackney during the week beginning October 22, 1990. Ms. 
Light testified that she was not sure now whether it was the beginning or the end of the review cycle, 
but she thought it was the end and all the Petitioner had to type were end comments which would 
have been brief and should not have taken the Petitioner any longer than twenty minutes. According 
to the Petitioner's own WPPR, the review period ended September 30, 1990. Therefore, any 
WPPR's the Petitioner would have been typing during the week of October 22, 1990, would have 
been for the new review cycle beginning October 1, 1990. 

4L Because of her other responsibilities, especially providing phone coverage, the Petitioner was rarely 

ever able to type any documents straight through from beginning to end without interruption. 

42. The Petitioner was given Rod Hackney's WPPR during the afternoon on October 23, 1990. She 
began typing Mr. Hackney's WPPR during the afternoon on October 24, 1990. 

43. On October 24, 1990, Ms. Light gave the Petitioner Chris Bulla's WPPR at approximately 4: 15 p.m. 
with a note attached informing the Petitioner that the WPPR needed to be completed by noon the next 
day. At the time the Petitioner received Ms. Bulla's WPPR, she was processing the afternoon mail 
and already had other assignments from Mr. Hackney, Ms. Bulla, Ms. Lint, and Ms. Light. In 
addition, she knew she would have to process the morning mail the next day, plus meet with Mr. 
Hackney regarding her own WPPR during the morning. The Petitioner wrote Ms. Light a note 
informing her that it would be impossible for her to meet the noon deadline for Ms. Bulla's WPPR 
and suggested that maybe Ms. Bulla could type her own WPPR or the Petitioner could get Ms. 
Bulla's WPPR to Ms. Light by noon on Friday, October 26, 1990. The Petitioner and Ms. Light 
negotiated a compromise deadline of 5:00 p.m., Thursday, October 25, 1990. 

44. The Petitioner gave Ms. Light Mr. Hackney's and Ms. Bulla's WPPR's at approximately 4:40 p.m. 
on Thursday, October 25, 1990. At that time, Ms. Light handed the Petitioner Ms. Lint's WPPR and 
asked her if she could complete it by 5:00 p.m. The Petitioner informed Ms. Light that she would 
begin typing Ms. Lint's WPPR, and if she could not complete it by 5:00 p.m., she would get it to 
her the next morning. 

45. On October 26, 1990, the Petitioner had to resolve a problem regarding payroll checks that had not 
arrived in the Courier mail. She then completed Ms. Lint's WPPR and gave it to Ms. Light by 9:30 
a.m. 

46. The deadline for submitting WPPR's for the October 1 , 1990 through June 30, 1991 review cycle to 
the Zoo's Personnel Department was October 26, 1990. 

47. The Respondent contends that the WPPR's prepared by the Petitioner were very unprofessional and 
messy. The Petitioner contends that the quality of work on the WPPR's was comparable to that 
prepared by other divisions of the Zoo. There were no exhibits presented during the hearing which 
would enable a fmder of facts to resolve the issue of the quality of the Petitioner's work as related 
to the preparation of the WPPR's. 

Labels for Public Service Announcements 

48. The Petitioner was responsible for ordering special mailers and typing labels for 50 boxes of radio 
public service announcement tapes. The requisition for the special mailers is dated October 23, 1990, 
and indicates the mailers for this project were needed as soon as possible. Ms. Light initialed the 



387 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



requisition. 

49. The mailers were ordered on October 25, 1990 and 100 of the 125 ordered were received on October 
26, 1990. The other 25 mailers were received on October 29, 1990. 

50. The Petitioner typed the labels for the fifty special mailers and filed them. 

51. On Saturday, October 27, 1990, Ms. Light found the public service announcements and the label list 
on the Petitioner's desk. She did not find the labels and did not ask the Petitioner about the labels 
during the three hours that both she and the Petitioner were in the office the next day, Sunday, 
October 28, 1990. 

52. Since Ms. Light did not see the labels on the Petitioner's desk with the announcements and label list, 
she assumed that the Petitioner had not typed them. 

53. The Petitioner took the labels to the receptionist who was to process the mailing on Monday, October 
29, 1990. 

54. The Petitioner did not type the labels on Monday, October 29, 1990 as alleged in the November 2, 
1990 memo from Ms. Light and Mr. Hackney. Except for the time spent doing the morning and 
afternoon mail, the Petitioner devoted Monday to helping the Marketing Office move to its new 
location. 

55. There was no evidence presented regarding a specific date by which the public service announcements 
had to be sent. 

The Brochures Check 

56. The Marketing Office received a $15.00 check for brochures which had been sent to an organization. 
Since the Zoo was no longer charging for brochures, the Petitioner gave the check to Ms. Light with 
a note asking whether she should process the check or send it back. 

57. Ms. Light wrote the Petitioner and Mr. Hackney a note on November 1, 1990 in which she stated 
that the check and cover letter had disappeared during the move and directing the Petitioner and Mr. 
Hackney to tell anyone who calls about the check to void the check. 

58. The memo written by Ms. Light on November 1, 1990, does not mention finding the check on the 
Petitioner's desk on October 27, 1990. The memo also does not mention that Ms. Light had 
previously instructed the Petitioner to call the person who had sent the check and offer to return the 
check and that the Petitioner had failed to do what she had been instructed to do as is alleged in the 
November 2, 1990 memo regarding the reasons for the Petitioner's dismissal. 

59. Ms. Light offered no explanation for the inconsistencies reflected in documents she wrote about the 
check incident on November 1 and 2, 1990. 

The Signing of the Petitioner's WPPR's 

60. The Zoo had an October 5, 1990, deadline for getting its WPPR's to the Respondent in Raleigh, and 
Ms. Light had been instructed that all WPPR's had to be in the Zoo's personnel office by October 
1, 1990. 

61. The Petitioner and her supervisor. Rod Hackney, reviewed her WPPR and calculated a preliminary 
score in the highly proficient range on Friday, September 28, 1990. Thereafter, Mr. Hackney 
finalized the WPPR by typing in the ratings and totalling the Petitioner's final score which was 242, 
a very high proficient rather than the highly proficient they had calculated during the joint review. 



8:4 NORTH CAROLINA REGISTER May 14, 1993 388 



CONTESTED CASE DECISIONS 



Mr. Hackney signed the Petitioner's WPPR on September 28. 1990. 

62. It is alleged in the November 2. 1990 dismissal memo that the Petitioner refused to sign her WPPR 
on Monday, October 1, 1990 and did not sign it until Ms. Light called her at home on October 3, 
1990 and threatened her with insubordination if she did not come in and sign the WPPR the next day. 

63. The Petitioner testified, and her time sheet corroborates her testimony, that she was absent from work 
due to illness on October 1. 1990. The Petitioner was also absent from work on October 2 and 3. 
Thus, there was no opportunity for the Petitioner to refuse to sign her WPPR on those dates. 

64. The Petitioner signed her WPPR for the April I. 1990 through September 30. 1990 review cycle on 
October 4. 1990, 

65. On October 25. 1990. the Petitioner met with Mr. Hackney to go over the performance expectations 
for the next review cycle. The Petitioner told Mr. Hackney that she would like for the WPPR to 
reflect that her signature did not mean that she agreed with the WPPR's expectations. Mr. Hackney 
agreed to check with the Zoo's personnel office to see if the Petitioner's request could be met and he 
indicated that he would get back with the Petitioner once he had a response from personnel. Mr. 
Hackney did not contact the Petitioner about her WPPR again prior to her dismissal on November 
2, 1990. 

66. The Petitioner did not refuse to sign the WPPR for the review cycle beginning October 1, 1990. 

67. It is clear from their demeanor throughout the hearing and from their testimony that there is a great 
deal of animosity between the Petitioner and Ms. Light. 

Based on the foregoing Findings of Fact, the undersigned Administrati\'e Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

Just Cause 

1. A State employee may be discharged for inadequate performance of duties provided that the employee 
has received the requisite number of warnings. Leiphart \\ School of the Arts . 80 N.C. App. 339, 
342 S.E.2d 914, cert, denied, 318 N.C. 507. 349 S.E.2d 862 (1986). In attempting to show just 
cause for a discharge, an agency must show that the employee has not performed with reasonable 
care, diligence, and attention. Job assignments must be reasonable and the employee must hase failed 
to make a reasonable effort to meet them. Walker v Department of Human Resources . 100 N.C. 
App. 498. 397 S.E.2d 350. cert, denied. 328 N.C. 98. 402 S.E.2d 430 (1990). 

2. The Petitioner's assignments (make a speech conform to publishing guidelines, type letters, type three 
WPPR's, type mailing labels, and return a check) appear on their face to be reasonable assignments. 
How.'ever, the reasonableness of the assignments and of the Petitioner's efforts to perform the 
assignments must be e\aluated in the context of the Petitioner's other office responsibilities. 

3. .Much of the basis for determining the issue of reasonableness in this case turns upon the credibilit\' 

of the two main protagonists, the Petitioner and Elise Light. Several factors lead to the conclusion 
that the Petitioner is the more credible of the two. Some of those factors are: a) Inconsistencies 
between Ms. Light's testimony and documents introduced, as illustrated by the brochures check 
incident, raise doubts about the accuracy of her evaluation of the Petitioner's performance; b) The 
total lack of credibility of Ms. Light's primary corroborating witness. Rod Hackney, after being 
confronted with a damaging memo written by him: c) A significant number of other Zoo employees 
did not ha\e the problems working with the Petitioner or understanding the Petitioner's diction that 
Ms. Lisht had; d) The Petitioner's actions in documenting events were consistent with the actions of 



389 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



a reasonable person who believed they were being harassed; e) Ms. Light's actions in giving work 
directly to the Petitioner after she was demoted to Secretary III even though Mr. Hackney was 
Petitioner's supervisor and prior to Petitioner resuming the Secretary III position, the Secretary IV 
was responsible for providing secretarial services to Ms. Light. 

4. None of the "deadlines" that the Petitioner allegedly missed were in actuality missed because either 
the Petitioner and Ms. Light continued to negotiate regarding the ultimate deadline or no deadline 
ever existed for completion of the task assigned. 

5. As far as the Respondent's complaints about the quality of the Petitioner's work, no evidence other 
than Ms. Light and Mr. Hackney's testimony was produced. No examples of the Petitioner's 
deficient work product between October I, 1990 and her dismissal on November 2, 1990 was 
introduced in evidence. Without some documentary evidence to corroborate Ms. Light's and Mr. 
Hackney's allegations, their testimony is not credible and the Respondent has failed to show by the 
greater weight of the evidence that the Petitioner's work product was messy and unprofessional. 

6. There is no evidence to support the Respondents allegation that the Petitioner deliberately delayed 
signing her WPPR's. 

Register Editor's Note: There is no Conclusion of Law #7 or #8. 

9. The Respondent has failed to show by the greater weight of the evidence that the Petitioner was not 
making a reasonable effort to perform the tasks assigned to her which formed the basis for her 
dismissal for inadequate job performance. 

10. The Respondent did not have just cause to dismiss the Petitioner from her employment as a Secretary 

m. 

Racial Discrimination 

1 1 . Where discrimination is an issue, the Petitioner bears the ultimate burden of proof. The Petitioner 
has failed to show that a discriminatory reason more likely than not motivated the Respondent's 
decision to dismiss her. The evidence indicates that it is possible that racial animus motivated Ms. 
Light's actions, but it is equally possible that the animosity between the Petitioner and Ms. Light had 
some other basis. Evidence which merely lets the trier of fact choose between two advocated versions 
of the truth is not sufficient for an employee to discharge his/her burden of proof on the discrimina- 
tion issue. 

12. The Petitioner has not proven that the Respondent unlawfully discriminated against her. 

RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
reinstate the Petitioner to her position as Clerk III at the N.C. Zoological Park with back and front pay; 
attorney's fees; and expungement of any negative material in her personnel file from October 1, 1990 until 
the date of her dismissal. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 



8:4 NORTH CAROLINA REGISTER May 14, 1993 390 



CONTESTED CASE DECISIONS 



NOTICE 

Before the State Personnel Commission makes the FINAL DECISION, it is required by North 
Carolina General Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this 
RECOMMENDED DECISION, and to present written arguments to those in the agency who will make the 
final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to the Office of 
Administrative Hearings . 

This the 12th day of April, 1993. 



i 



Brenda B. Becton 
Administrative Law Judge 



i 



391 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF DURHAM 



IN THE OmCE OF 

ADMINISTRATrVE HEARINGS 

92 DHR 0658 



LEON BARBEE, 
Petitioner, 

V. 

N.C. DEPARTMENT OF HUMAN RESOURCES, 
DIVISION OF MEDICAL ASSISTANCE, 
Respondent. 



RECOMMEND DECISION 



This contested case was heard by Fred G. Morrison Jr., Senior Administrative Law Judge, Office of 
Administrative Hearings, on January 29, 1993, in Raleigh, North Carolina, upon appeal from Respondent's 
denial of continuing private-duty nursing benefits for the Petitioner. 

Petitioner was represented at the hearing by Cyndi Haden, Staff Attorney, North Central Legal 
Assistance Program. Respondent was represented by Claude Whitener, Associate Attorney General. 

WITNESSES 



FOR THE PETITIONER: 



FOR THE RESPONDENT: 



Dr. Shed Keitz 
Petitioner's Physician 

Elizabeth Louise Barnard 
Registered Nurse 

Patricia Ann Sumpter 
Registered Nurse 

Olivia Hill 
Registered Nurse 



FINDINGS OF FACT 

1. The Petitioner is a fifty-year old male who has received private-duty nursing services through the 
Medicaid Program. 

2. The Petitioner was hospitalized at Duke University Medical Center from 1990 to 1991, and was out 
of the hospital for only several days over that entire year. 

3. Upon Petitioner's discharge from the hospital in October 1991, and continuing to March 2, 1992, the 
Respondent provided private duty nursing benefits for Petitioner for eight (8) hours per day, seven 
(7) days per week. Duke University Medical Center paid for private duty nursing care for Petitioner 
for eight hours per day. seven days per week. These services were and are medically necessary. 

4. On March 2, 1992, Respondent notified Petitioner that Respondent would no longer provide private 
duty nursing care to Petitioner. 

5. Petitioner appealed the reduction in benefits through the Respondent's appeal process. The Petitioner 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



392 



CONTESTED CASE DECISIONS 



has continued to receise benefits from the Respondent pending this appeal. 

6. On April 10. 1992. a Reconsideration Review was held on Petitioner's appeal. The Hearing Officer 
upheld Respondent's decision. 

7. Petitioner appealed the Hearing Officer's decision to the Office of Administrati\e Hearings on June 
2. 1992. 

8. Dr. Sheri Keitz is the medical resident personally responsible for Petitioner's primary' care. She has 
treated Petitioner since October, 1991. She was qualified as an expert witness. 

9. Doctor Keitz testified that the Petitioner has the following medical complications during the period 
that is on appeal: 

a) diabetes, which is difficult to manage; 

b) paraplegia, following surgery' to the spine; 

cj ver>' severe and e.xtensive Stage IV decumbitis ulcers; 

d) osteomyelitis, caused by the methacillin resistant staff (sic) aeurus bacteria; 

e) intermittent bleeding, caused by arterio\enous malformations in the duodendum; 

f) chronic anemia; 

g) poor nutrition that requires tube feeding; 

h) essential thrombosis cytosis, a disorder of the platelets; and 

i) chronic foley catheterization. 

Doctor Keitz testified that it was her professional opinion that Petitioner needs sixteen (16) hours of 
private-duty nursing care daily. 

10. Doctor Keitz testified that pri\ate-duty nursing care was necessary to ha\-e someone to whom, "1 can 
give orders to o\er the phone to administer or change or add medicine when he needs that" (and) ". 
. . someone who is really at the le\el of being able to do appropriate evaluation in a patient who is 
potentially unstable at times." 

11. Doctor Keitz testified that the Petitioner's condition is not ven,' stable, due to his intermittent 
bleeding, and susceptibility to infection due to the skin breakdown, diabetes, and foley catherization. 
She stated that the diabetes impairs healing. 

12. Elizabeth Barnard is a registered nurse with ten years experience. Nurse Barnard was qualified as 
an expert witness. Nurse Barnard provided direct patient care to Petitioner from October 1992 to 
Januan,' 1993. 

13. Nurse Barnard testified that it v\as her professional opinion that Petitioner required sixteen (16) hours 
of private-duty nursing care daily. 

14. Nurse Barnard testified that Petitioner's medical problems interact with each other as follows: 
a) Petitioner's fluid loss interferes with his electrolytes; 



393 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



b) Petitioner has multiple possible sources of infection through his wounds, urinary track 
catheterization, gastronomy tube and Hickman catheter; and 

c) Infection will affect the blood sugar requiring increased insulin. 

15. Nurse Barnard testified that Petitioner needed constant assessment by a nurse. 

16. Nurse Barnard testified that Petitioner's blood sugars are very unpredictable, and that he has five 
finger stick tests each day. Nurse Barnard also testified that Petitioner receives varying amounts of 
insulin by injections five (5) times each day. 

17. Nurse Barnard testified further that due to Petitioner's paraplegia, it would be impossible for him to 
self-administer varying amounts of insulin. 

18. Nurse Barnard and Nurse Hill each testified that the North Carolina Board of Nursing regulations 
mandate that a registered nurse or licensed practical nurse administer insulin. 

19. Ms. Patricia Ann Sumpter is a registered nurse with sixteen (16) years of experience. She is currently 
an Administrator and Director of Health Care Services. 

20. Ms. Sumpter was qualified as an expert witness as a nurse and person with knowledge in the field 
of providing services to patients such as Petitioner. 

21 . Nurse Sumpter testified that in her professional opinion. Petitioner required private-duty nursing care 
from seven in the morning (7:00 AM) to eleven at night (1 1 :00 PM), or sixteen (16) hours per day. 

22. Ms. Olivia Hill testified for the Respondent. Ms. Hill is a licensed nurse working as a supervisor 
of the Specialized Care Services Unit of the Division of Medical Assistance. 

23. Nurse Hill testified that she felt that Petitioner did not meet the criteria for sixteen hours of private- 
duty nursing care daily. 

24. The original determination to terminate services was based on a review of doctor's orders, nursing 
assessments and nursing notes. Nurse Hill visited Petitioner, but did not perform a hands-on 
assessment. 

CONCLUSIONS OF LAW 

1. The controlling legal principle in this case is the Respondent's policy on private-duty nursing 
enunciated in 10 N.C. Admin. Code, Chapter 26-B, Section 0121. 

2. 10 N.C. Admin. Code, Chapter 26-B. Section 0121(c) provides for the evaluation of the necessity 
for private-duty nursing as follows: 

Private duty nursing services are considered medically necessary when the person must 
require substantial and complex nursing care by a licensed nurse. Professional judgment and a 
thorough evaluation of the medical complexity and psychosocial needs of the patient are involved in 
determining the need for PDN. The following situations represent the usual types of cases that may 
require PDN, though the list is not meant to be all inclusive: . . . 

3. Based on the testimony of all the witnesses, it is concluded as a matter of law that Petitioner's medical 
condition requires continuing skilled nursing care and Petitioner qualifies for benefits under the above 
cited provision. Therefore, the Petitioner is entitled to continue to receive eight hours a day, seven 
days a week of Medicaid-funded private duty nursing services. 



8:4 NORTH CAROLINA REGISTER May 14, 1993 394 



CONTESTED CASE DECISIONS 



Based on the foregoing Findings of Fact and Conclusions, the Senior Administrative Law Judge makes 
the following: 

RECOMMENDED DECISION 

It is hereby recommended that Petitioner was eligible for and should continue to receive private-duty 
nursing benefits from Respondent for eight (8) hours per day, seven (7) days per week. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Human Resources. 

This the 30th day of April, 1993. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



395 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF DURHAM 



IN THE OFRCE OF 

ADMINISTRATIVE HEARINGS 

92BMS 1169 



BOARD OF MORTUARY SCIENCE, 
Petitioner, 



V. 



TRIANGLE FLFNERAL CHAPEL, INC., 
Respondent. 



PROPOSAL FOR DECISION 



This matter came on for hearing before the undersigned administrative law judge on April 14, 1993, 
in Raleigh. 

Mr. Charles J. Murray represented the petitioner. Mr. Walter E. Ricks, III represented the 
respondent. The petitioner presented five witnesses and introduced eleven exhibits. The respondent presented 
two witnesses and introduced three exhibits. 

ISSUES 

1. Did Mr. Roy Robinson, an owner and officer of the respondent, violate G.S. 90-2 10.25(f) by 
engaging in the practice of funeral directing and funeral service without a license? 

2. Should the respondent's establishment permit be suspended or revoked in accordance with G.S. 90- 
210.25(d)4 if Mr. Robinson violated G.S. 90-210. 25(f)? 

STIPULATED FACTS 

1. Mr. Roy Robinson is the only stockholder who owns more than 25% of the stock of the respondent. 
Triangle Funeral Chapel, Inc. Mr. Robinson is also an officer of the respondent. 

2. The respondent holds an establishment permit pursuant to G.S. 90-210. 25(d). 

3. Mr. Robinson does not hold licenses for the practice of funeral directing, embalming or funeral 
service. 

4. Minnetta Hill, who holds a funeral service license, was the respondent's manager. 

FINDINGS OF FACT 

1. Mrs. Lessie Barr is the granddaughter of Sally Peace who died on May 19, 1992. Mrs. Barr took care 
of her grandmother prior to the death of Mrs. Peace. Mrs. Barr and James T. Peace, the son of Mrs. 
Peace, contacted the respondent concerning the funeral arrangements for Mrs. Peace. They spoke with 
Mr. Robinson. He showed them a catalog with pictures of caskets and provided them with the price 
of four different caskets. He also determined the price of the services selected by the family. Mrs. 
Barr did not speak with Ms. Hill. Ms. Hill completed and signed the contract on behalf of the 
respondent. Payments were made to Mr. Robinson who gave Mr. Peace the receipts. 

2. Clifton Grooms is the nephew of Mr. John Ferrell who died on May 16, 1992. Mr. Grooms contacted 
the respondent concerning the funeral arrangements for Mr. Ferrell. Mr. Grooms spoke with Mr. 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



396 



CONTESTED CASE DECISIONS 



Robinson. Mr. Robinson showed Mr. Grooms the caskets that were on display and told Mr. Grooms 
that he would make arrangements for a casket at the best price available. Mr. Robinson determined 
the price of the casket and services to be 53,360.00. Mr. Grooms spoke to a lady, presumably Ms. 
Hill, who filled out and signed the contract on behalf of the respondent. Payments were made to Mr. 
Robinson who gave Mr. Grooms the receipts. 

3. In May, 1992, Mr. Robinson informed Ms. Hill of the arrangements that he had made with Mr. John 
FerrelFs family. In the presence of the family, she filled out a contract using the information supplied 
by Mr. Robinson. About the same time. Mr. Robinson directed her to fill out a contract for Mrs. 
Peace's funeral according to information supplied by Mr. Robinson. Ms. Hill was not present when 
the arrangements were made by Mr. Robinson and accepted by the family. 

4. Ms. Hill was employed by Mr. Robinson in April. 1992. after a difficult search for a manager. 
Although licensed to practice funeral service, Ms. Hill had neser made a funeral arrangement on her 
own. A former manager offered assistance to Ms. Hill, but Ms. Hill remained unable to perform her 
duties. Ms. Hill did not know that the cemetery set the prices for lots. Mr. Robinson made the funeral 
arrangements with the families of Mrs. Peace and Mr. Ferrell because of the inexperience of Ms. Hill 
and the inability to promptly replace Ms. Hill. Ms. Hill resigned about the end of May, 1992. 

CONCLUSIONS OF LAW 



1. Mr. Robinson violated G.S. 90-210. 25(f) by practicing the profession of funeral directing and funeral 
service without having complied with the licensing provisions of G.S. Chapter 90, Article 13A. 

2. The petitioner may suspend or revoke an establishment permit when an owner or officer, such as Mr. 
Robinson, violates any provision of G.S. Chapter 90, Article 13A, such as G.S. 90-210. 25(f). In 
deciding whether to suspend or re\oke a permit, the petitioner must consider the facts in each case. 
Although Mr. Robinson violated the law, mitigating factors were that the manager, due to 
inexperience, was unable to make the funeral arrangements and that Mr. Robinson, as owner and 
officer, believed it was necessary for him to make the arrangements. 

PROPOSAL FOR DECISION 

It is proposed that the respondent's establishment permit be suspended for thirty days. 

NOTICE 

The final decision in this contested case shall be made by the Board of Mortuary' Science. Each party 
has the right to file exceptions and proposed findings of fact and to present oral and written arguments to this 
agency. 

This the 29th day of April, 1993. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judae 



397 8:4 NORTH CAROLINA REGISTER May 14, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two (f these, 
titles and chapters, are mandatory. Tlie major subdivision of the NCAC is the title. Each nuijor 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. Tlie other rw'o, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTEli 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


I4A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometiy 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






"Reserved" 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech & Language Pathologists & Audiologists 


64 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:4 



NORTH CAROLINA REGISTER 



May 14, 1993 



398 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

I - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 



{ 



Unless otheruise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Le\el Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

ENVIRONMENT, HEALTH, AND NATURAL RESOLUCES 

Coastal Management, 279 
Environmental Management, 210 
Health Services, 283. 335 
Marine Fisheries, 28 
Soil and Water Conservation, 214 
Wildlife Resources Commission, 32 
Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1. 93, 229, 332 

HUMAN RESOURCES 

Facility Services. 94 

Medical Assistance, 25 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7 

Social Services Commission, 237 

JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Di\ision, 241 

Private Protective Services Board, 252 

LABOR 

OSHA. 97, 231. 278 



399 8:4 NORTH CAROLINA REGISTER May 14, 1993 



CUMULATIVE INDEX 



LICENSEVG BOARDS 

Architecture, 43 

Geologists, Board of, 285 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Real Estate Commission, 53, 364 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 



8:4 NORTH CAROLINA REGISTER May 14, 1993 400 



i 



NORTH CAROLINA ADMINISTRATIVE CODE 



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■J.S.PCS7A-J 



/ K METES 2T3,3:^ 



FIRST CLASS MAIL 



5B5 

UNIV. OF NORTH CAROLINA 
LAV LIBRARY CBt 3385 
UAN HECKE-yETTACH 064-A 
CHAPEL HILL 



NC 27599